The Magna Carta & The Federalist Reconsidered

Guest lecturers revisit centuries-old documents

Professor Sanford V. Levinson speaks on The Federalist.

Professor Sanford V. Levinson speaks on The Federalist.

Few documents have had a bigger impact on the U.S. Constitution than the Magna Carta and The Federalist, but what lessons do they hold for us in the 21st century? In the spring of 2015, the University of South Carolina School of Law invited two distinguished lecturers to share their insights and reveal the influence these documents still have on the U.S. justice system.

A. E. Dick Howard, the White Burkett Miller Professor of Law and Public Affairs at the University of Virginia School of Law, delivered the 2015 Benjamin Hagood Lecture, “Magna Carta: A Legacy 800 Years in the Making.” The Magna Carta, written in 1215, celebrated its 800th anniversary on June 15 of this year. It outlines specific rights inherent to all free men, including swift justice, no unreasonable taxes, personal liberty, and the idea that no man—not even the king—is above the law.

So it was of little surprise that the colonists who settled America brought with them these rights in their charters, and they clung to them more dearly than the English ever had. According
to Howard, while the English allowed Parliament to pass any law it pleased, the colonists believed there were limits to Parliament’s authority to govern them. He added that although this belief was first used to justify the move toward independence, it also transcended to the framers of the Constitution, who ensured that U.S. judges had the power to uphold or strike down laws passed by legislative bodies.

“The Magna Carta stands for the articulation of fundamental rights,” said Howard, and its legacy on the United States can be seen throughout the Constitution and Bill of Rights, including the concepts of the rule of law, constitutional supremacy, and due process.

But, he argued, perhaps one of its biggest influences is the idea of an organic, evolving constitution that can be adapted to the needs and challenges of our own time. Reinforcing this point, Howard cited Justice Anthony Kennedy’s opinion from Lawrence v. Texas: “Those who drew and modified the due process clause … knew times can blind us to certain truths, and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”

Sanford V. Levinson, the W. St. John Garwood and W. St. John Garwood Jr. Centennial Chair at the University of Texas School of Law, delivered the 2015 Charles Knowlton Law & Liberal Arts Lecture, “Learning from the Federalist.” The Federalist, or Federalist Papers, is a collection of 85 essays written in 1787 and 1788 to persuade the states to ratify the U.S. Constitution. Although they often are used to help us understand the intentions of the Constitution’s framers, Levinson urged his audience to read them again with a critical eye towards how they might be reinterpreted today.

He began his lecture with Federalist Number One, which impressed upon its readers the great opportunity given them to decide on a framework of government by reflection and choice,  rather than by accident or force. So how should those of us alive today, charged with not only perpetuating the Constitution but improving it, view this first essay? Should we simply accept the decisions the framers made for us, or should we be inspired by their example and engage in reflection and choice of our own? A strong advocate for the latter, Levinson went so far as admitting he was in favor of the formation of a new constitutional convention (while acknowledging the process for doing so is prohibitively complicated).

And what of today’s developing nations who are forming their own constitutions and look to The Federalist as a source of wisdom from which to draw? How are they to interpret and
apply these centuries-old writings? Certainly many, like Number One, can be helpful, but others are decidedly more ominous, according to Levinson.

He pointed specifically to Numbers Six, 23 and 41, which say that all men are ambitious and vindictive, that dangers to a nation’s safety are infinite, and that no barriers to a nation’s self-preservation should be imposed. In 1788 these ideas would have been understood as supporting both the unification of the states and the development of a strong national defense for a fledgling country vulnerable to attack by the day’s world powers. Today, he argued, they could be taken as supporting, among other things, the use of torture during war.

For better or worse, Levinson said, the words of The Federalist are being considered not just by Americans, but by people across the world, and we should wonder what they are taking away from it. “What are the implications if you are a foreigner who is reading Th e Federalist because the ABA has sent you a copy with a cover letter saying it would be very useful and contains wisdom about governance and constitutional design?” he asked. “Well it ought to be obvious that one of the things that you would pick up is that it is a cold and cruel world out there … and among the forces to be feared is the United States itself.”