"The Myth of Magna Carta"

The Magna Charta article cited is the start of the 800th (or 790) anniversary coverage over at Concurring Opinions Blog. 

The "great charter" was renounced shortly after it was signed but in time was seen as a seminal moment of English (and American) liberties.  Edward Coke (who in an originalist sort of way and otherwise is something of a patron saint of judicial review) apparently did some law office history before it was cool.  Coke was a 17th Century jurist who claimed a special role to even hold a law passed by Parliament void, judges have a special role to applied the "artificial reason" of the law. And, the obligation to respect their judgment goes up to the king, who at the time wasn't so gung ho about the outer limits of such logic.  

His writings and rulings were seeds for the future. By the time of the American Revolution, the great British jurist William Blackstone spoke of parliamentary supremacy, but the colonists were not quite so sure.  Just what this would be in respect to judicial review by the time of the Constitution still remained somewhat unclear, but Coke was at times appealed as precedent. Just how valid and strong such appeals were is still debated.  Single opinions rarely tell us much in a vacuum. It is what they tell us in context and over time that generally matters the most. 

The Magna Charta appears to have a kernel of an idea of the limits of executive power and the rule of law, even if how it was applied in the times of Robin Hood the Merry Men (about as fictional as how the Magna Charta was remembered) it was very different. The British article cited above flags how the Magna Charta, including the key "law of the land" article, is misunderstood.  I think this can go a bit too far. The key clause:

No freemen shall be taken or imprisoned or disseised or exiled or in any way 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.

This was a basic rule that didn't have the power of judicial review to back it up, juries were in their infancy (more grand juries to collect facts) and "the law" was more a matter of accepted traditions than written statutes. And, the basic way to enforce it was what occurred then -- a civil war where you use the force of arms to get relief.  Also, as noted in the article, the idea that English kings swore to follow the law was not invented in 1215.  Still, the core idea -- with much detail and institutions added -- is very important.  The importance of the Magna Charta, mostly forgotten feudal rules, might be a sort of "invented tradition," but that's nothing new.

This could in some fashion be kept in mind when it is applied in a much later context, but it's important to keep in mind the changes. This should be kept in mind when applying history in the same sex marriage cases.  I wonder how future generations will understand our own times, including a new constitutional amendments. Consider, e.g, GRANHOLM v. HEALD involving the 21A. Justice Stevens, who remembered the times when it was ratified, dissented and had a different view of the "original understanding" than the majority.  Justices Scalia and Thomas also were on opposite sides. 

"Myth" is sometimes demeaned as merely fictional, but there's more:

a traditional or legendary story, usually concerning some being or hero or event, with or without a determinable basis of fact or a natural explanation, especially one that is concerned with deities or demigods and explains some practice, rite, or phenomenon of nature.

Like fiction generally, there is often a core truth. [post expanded]