Magna Carta does not look like a constitution. In point of fact, it looks like a list of demands issued by hostage-takers, which in some sense it was: some kings are born constitutional monarchs, and some kings achieve it, but King John had constitutional monarchy thrust upon him. We must realize that the Magna Carta as a document was not itself written by the head of state -- who was, in 1215 when the document was signed at Runnymede, King John, also known as "John Lackland," the youngest son of Henry II and Eleanor of Aquitaine -- but in fact this head of state was compelled to issue it by the aristocracy and clergy. This is what makes it such a peculiar document to read: the opening sentence is in the voice of King John, offering "greeting" to "the archbishops, bishops, abbots, earls, barons, justiciars, foresters, sheriffs, stewards, servants, and to all his bailiffs and liege subjects" FN1.[footnoteRef:0] But the list of numbered clauses that comprises the main body of the document, while technically still spoken in the king's voice, grants rights and issuing laws, with all the temporal authority of the sovereign and head of state, when the grocery-list nature of these proclamations makes it clear that they were all demands made by the aristocracy, which are now being granted by royal decree. In some sense, John's viability as sovereign and head of state was conditional upon his signing of the document, since he otherwise might have faced a rebellion or deposition. I hope to demonstrate through an analysis of the text of the Magna Carta -- with a close focus on justice, religion, and citizenship -- that, although the document admittedly does not resemble a constitution, it is a sort of proto-constitution, containing in embryonic form all the elements that we would associate with constitutional law. In other words, the Magna Carta in the thirteenth century and the United States Constitution in the eighteenth century do have a kind of evolutionary similarity. Much of what we in the twenty-first century would consider to be the essential goals and characteristics of a constitution can be found in a primitive or embryonic form within the text of the Magna Carta. [0: Magna Carta. In Albert Beebe White and Wallace Notestein, eds., Source Problems in English History (New York: Harper and Brothers, 1915). 1.] In terms of the establishment of civil laws, such as the procedural dynamics of crime and its legal handling, it is worth looking closely at Clauses 38 through 40 of the document:

38. No bailiff for the future shall, upon his own unsupported complaint, put any one to his "law," without credible witnesses brought for this purpose.

39. No freeman shall be taken or imprisoned or diseased or exiled or in anyway destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.

40. To no one will we sell, to no one will we refuse or delay, right or justice.[footnoteRef:1] [1: Magna Carta, 38-40.]

This is the closest that the Magna Carta gets to resembling an actual constitution. Clauses 38 and 39 will be recognized as primitive statements of some of the bedrocks of criminal law, like the necessity of witness testimony or the rights of habeas corpus. In particular, Clause 40 sounds like a broad statement of principle placed in the mouth of the head of state: "To no one will we sell, to no one will we refuse or delay, right or justice." The modern-day reader must recognize that King John is employing the "royal we" in this sentence -- what the sentence means is "To no one will the King sell, to no one will the King refuse or delay, right or justice." This is a firm limitation upon the powers of the sovereign, and was intended as such. Yet the use of the "royal we" in this sentence also gives it the sense of the King's role as head of state in being the one person who speaks for the entire population -- that is why the King is traditionally given a plural pronoun, because he is meant to represent all of his subjects -- and so in this case the limitations upon his executive authority sound like a general statement of principle regarding how justice is to be done in England. It is not for sale, it is available to all, and it is available swiftly. It is worth noting that this last provision -- the guarantee of speediness in justice -- was not something that the Framers of the United States Constitution included within...

[2: United States Constitution, Amendment 6, sec. 1, cl. 1.]
The second way in which the Magna Carta resembles an embryonic constitution comes in its establishment of a relationship between church and state. The conclusion of the document in Clause 63 reads:

Wherefore it is our will, and we firmly enjoin, that the English Church be free, and that the men in our kingdom have and hold all the aforesaid liberties, rights, and concessions, well and peaceably, freely and quietly, fully and wholly, for themselves and their heirs, of us and our heirs, in all respects and in all places for ever, as is aforesaid. An oath, moreover, has been taken, as well on our part as on the part of the barons, that all these conditions aforesaid shall be kept in good faith and without evil intent. Given under our hand -- the above-named and many others being witnesses -- in the meadow which is called Runnymede, between Windsor and Staines, on the fifteenth day of June, in the seventeenth year of our reign.[footnoteRef:3] [3: Magna Carta, 63.]

The first thing we must recognize about England in 1215 is that the Roman Catholic Church existed in an elaborately bureaucratic form. We might recollect that the first recorded writings by an inhabitant of the island of Britannia is Saint Patrick himself, who left written documents by a Roman Christian in the fifth century or thereabouts. The church was obviously the most powerful institution in those centuries when, politically speaking, England was populated by a weird congeries of little Germanic kingdoms, with irregular observance of prior legal codes like the Salic Law, the Brehon Law, or even indigenous codes of justice like Gavelkind (practiced almost exclusively in the English county of Kent, but bearing some resemblance to extant continental legal systems). In other words, the investment of the Roman Catholic Church in the Magna Carta -- which is stated outright in the opening and closing paragraphs of the text -- practically makes the document into the word of God. But of course, the Roman Catholic Church was just as reactionary in 1215 as it is in 2015, and thus the clergy's investment in the terms of the Magna Carta is stated outright at the beginning: "the English church shall be free, and shall have her rights entire, and her liberties inviolate"[footnoteRef:4]. In other words, the English church shall continue to enjoy the status under King John that it had enjoyed for a long time: by way of context, it is worth recollecting that from 1154 to 1159, the Pontifex Maximus of the Roman Catholic Church was Pope Adrian IV, aka Nicolas Breakspear, the only Englishman ever elected to the Papacy. The prestige of England's Roman Catholic church was tremendous in King John's time, as it would remain up through Henry VIII's ironic-in-retrospect Papally-bestowed title of "Defender of the Faith" a little over three centuries later. Of course at the time of the drafting of the U.S. Constitution, there was still a Church of England, although most of the northeastern U.S. colonies had been founded by those religiously disenfranchised by George III's government (like Maryland's Roman Catholics, Pennsylvania's Quakers, or Massachusetts's Unitarians). Thus the first Amendment to the U.S. Constitution lays out the establishment of religion as clearly as the first paragraph of the Magna Carta -- but America's religious pluralism necessitated this establishment to be defined in the negative, where "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." [footnoteRef:5] [4: Magna Carta, 1.] [5: United States Constitution, Amendment I.]

The final way in which I would like to suggest the Magna Carta resembles a constitutional document is through its definition of citizenship. The Magna Carta actually only does this implicitly,…