Speaking at the Museum of the Bible in DC, Walter Russell Mead, Jonathan Silver, and Catherine Pakaluk discussed the Magna Carta’s legacy of liberty.
Walter Russell Mead: All right well thank you Mark for that introduction good to see everybody here. I see that this is a very intellectual audience. You might wonder how I know that, it’s just something I’ve learned through many years of speaking and that is that when you’re with an audience of students they try to sit as far too close to the back of the room as possible, while if you’re in a room full of journalists, they try to sit as close to the front. We can see this is a very reflective studious crowd and you’re hoping against hope that if you sit far enough in the back I won’t call on you at some point during the lecture. I hadn’t actually realized until I got here that we have a protestant, a catholic, and a jew speaking. It does sound like a joke and made me even think of one which is just the story that when a rabbi comes in to the synagogue and he gets up to preach he says “Moses taught” when a catholic priest comes up to give a sermon it’s the “church teaches” when the protestant comes in it’s “it seems to me” so you know that’s about what you’re going to get tonight for me. Anyway, as it seems to me and I hope you’re okay with that I’m actually glad to be here talking about Magna Carta. For one thing it’s you know I’m talking about something that’s older than I am and that is always encouraging, but also because actually believe it or not as old as this document is it can tell us things that are actually quite useful today.
Most of us here are probably not interested in a lot of the details of Magna Carta you know just like how much can you deduct against expenses of the estate when you have an underage heir of a feudal property on your hands, can you marry off the heir of a property to someone of lower social standing while they are still a minor? The answer by the way, is no you cannot according to the Magna Carta. Lots of other details like this that that we’re probably not that interested in these days, but there are some sort of principles or ideas behind the specific pronouncements of Magna Carta that still mean something. By the way just checking here how many in the audience actually know what Magna Carta is or was? That’s a fairly encouraging show of hands, so I’m not going to get into that. It was basically a charter that King John signed under duress when confronted with some angry barons and the idea was that it would impose some limits on what they felt were John’s abuses of his powers.
In my family we like to say we had a little bit of a connection with these events. It was signed by Runnymede. We say that an ancestor of ours was a General Mead and worked for King John and was not a very good general. In fact, Runnymede was his nickname, and it was because of his military failures that actually John was forced to sign Magna Carta so we feel a little pride in that. Anyway, so what are these kind of eternal principles or at least long-lasting principles that make an 800-year old document relevant today? There are three things that I would point to and perhaps my other the other speakers will have some additional ideas.
The first is that if you read Magna Carta what you’ll find is it’s very early on talks about the church in a rather special way. Now John was a bad king and Pope Innocent III, who was the pope at the time was a rather ambitious pope. He actually would later excommunicate and would declare Magna Carta null and void because he was against any limits on John’s power. John fearing his political weakness had taken the step of declaring himself the vassal of the pope and that England should be considered rather than an independent kingdom a feudal possession of the pope. This kind of aligned Innocent with John and against the barons who are trying to limit John’s power. Nevertheless, you know that’s all sort of politics that comes and goes more profoundly is this sense, the church is an institution that has transcendental business that is it’s about the relationship of God and man, and it has duties connected with that. But, in the secular world of property of interactions with others in society, the church is one institution among many. It has its rights and it has its obligations under the same laws as everyone else and there is implicit here what would ultimately grow into an idea of separation of church and state. That the church is important, the state is important; each has a sphere and each in its own sphere is supreme. But the church’s standing is still special because conscience, which is fundamentally the business of the church, conscience needs to rule the state as well. That is, there’s a sense of right and wrong which proceeds ultimately from our sense of the divine that should bind magistrates and rulers, as well as it should bind priests, bishops, and any officials of whatever church we’re talking about. And so, in the minds of the people who are fighting over Magna Carta writing Magna Carta there’s a fairly complex sense of the relationship of religion and the rest of life of church and state that over time we can see not just in the English-speaking world, but throughout the west is taking shape. Many of the things that are the most important about our institutional lives and our freedom today can be traced back to this principle. Again, in its regard for the things of the church, as well as the things of the state, it seems to me that that Magna Carta is making an important kind of, I won’t say assertion because it’s a document and documents don’t have a will, but behind Magna Carta is the idea that the church really matters, that religion really matters. The first thing that is in Magna Carta is a reassertion of the rights of the church, again in the context of the time this is about struggles between bishops and other feudal lords and so on. But freedom and liberty if not grounded, I think in reverence and faith, sooner or later will go badly. That’s the first point.
The second point that strikes me about Magna Carta that we need to keep in mind today is that it’s a very conservative document at the same time that it’s a document that points toward freedom. Why do I say it was conservative? Because if you look at that document what it’s doing it has the assumption that we have rights and we have liberties, and they were handed down to us and it’s our job to protect these against the usurpations of an ambitious king. A king who basically because John was not a very effective king, or very effective military leader, he needed to keep squeezing the people for as much revenue as he could, and he was looking for all the loopholes he could find to get extra feudal dues cut corners whatever. They’re coming back saying no you cannot do that. They’re saying the city of London, the other cities and corporations of England have charters, have rights it’s our job to defend these. You cannot introduce a lot of innovations that level out the freedoms of the people of this kingdom. And that association of a heritage of freedom which needs to be preserved, you can find that echoing down the next 800 years of both British and American history. If you look at the writings of someone like Thomas Jefferson, you’ll find that he very much believed that the English-speaking world had a legacy of liberty. He attributed it to the ancient Anglo-Saxons before the Norman conquest, and he interpreted history as the battle between centralizing authorities that were all trying to establish absolute ruler of one kind or another. And then the people who were trying to protect the liberties that had been handed down to them. If you go through the study of the English civil war of the glorious revolution, hundreds of years of English political evolution, you’ll find this same idea is there; the radicals think of themselves as conservatives, and the conservatives think of themselves as radicals. I would just suggest to all of us that in a time like this when sometimes it seems like the cause of liberty and the cause and the reverence for heritage it becomes separated, we might do better to try to think about in what ways are there elements in our heritage that speak to a kind of liberty that needs to be preserved. This I think is a way we can maybe help bring some kind of community and unity in a society that often feels very deeply divided. Conservatism in this view is not a simple sort of nothing can be changed, no injustice can ever be be addressed, but rather that the essence of what are we trying to conserve? We’re trying to conserve a heritage of liberty. That gives you I think a different idea of what it means to be both a conservative and a partisan of liberty. I would be very happy if more American politics could shift into this mode. I think Magna Carta has something to teach us.
Finally, I’ll just conclude by noting that if you look at Magna Carta there’s an idea of rights there, there are no abstract declarations of rights in Magna Carta. Rights are seen as things that come from the law, that are embedded in the law represented and defended by the law. It’s a very interesting idea, it’s one we still find. In America, how much of our discourse today says you know my constitutional rights you can’t take; you can’t tamper with my constitutional rights? Our rights are grounded in the law. This puts a heavy responsibility on lawmakers because when you are making or writing laws, even when you are writing 1.5 trillion-dollar appropriations that you’re going to pass in a week, you should be thinking about the rights that that law is meant to embody and defend. The same thing is true though that that when we think purely of liberty in terms of abstract principles and we don’t ground it in a sense of law and institutions, it’s very easy to fall away from anything that can be politically realized or defended. The liberty and law, they go together, they belong together, you can’t have one without the other and to do either one of them, well you need to do both of them well together. Those strike me as lessons of Magna Carta, I hope that all of us can keep that flame alive as we go forward. Thank you.
Catherine Pakaluk: Good evening. Can you hear me fine? Thank you. I am so pleased to be with you tonight. I guess I’m representing the papists. Well surely much humor can ensue, but like Walter, I’m coming to think that there are fewer friends of liberty these days, and I’m grateful then to be with you reflecting a little bit soberly although we can laugh about the gift of God which is human freedom. And I was just reminded listening to the previous remarks that one of the great moderates or you know, sort of liberal conservatives of the French revolutionary period or post-revolutionary period in France, Madame De Stall, has a nice line where she says “you know the trick with liberty is to sell it as something that’s against religion and if you do that people will have to be against liberty.” So, I think the context that we’re in tonight is just especially salutary.
I wanted to begin by turning to a great text from the founding era penned by the American statesman writer and brewer, Sam Adams. In November of 1772, just about a year before the tea party, Adams wrote the following stirring passage “Magna Carta itself” he said “is in substance but a constrained declaration or proclamation and promulgation in the name of the king lord and commons of the sense the latter had of their original inherent indefeasible natural rights, and also those of free citizens equally perdurable with the other.” And then he goes on to say “that great author, that great jurist, and even that great court writer, Mr. Justice Blackstone holds that this recognition was justly obtained from King John’s sword in hand and per adventure it must be one day sword in hand again rescued and preserved from total destruction and oblivion.”
Now, what Adams had in mind of course was the coalescing of political energies and fervor which would soon lead to the American revolution. In our own time, the challenges to the rights of man are no less serious, but they are less well defined even by those who agree with my 13-year-old son, and his gloss on the Magna Carta. What he said to me, “that’s when they said no one is above the law not even the king” and we could add not even the church. What would it mean to endorse such a view today that no one is above the law? I’ve tried to pick out I think three pieces which have run through this this tradition, this heritage of liberty, that Walter talked about.
The first is that it would require that there exists a supreme law, a law giver, and that we have access to that law through forms of revelation, sacred tradition, and even the common sense of civil society. As Sam Adams put it, “the rights of colonists as Christians may be best understood by reading and carefully studying the institutes of the Great Law Giver and head of the Christian church.” He said, “which are to be found closely written and promulgated in the new testament.” I should say that Sam Adams did not think that Papists deserved these rights of conscience. I have to add this as the representative of the papists, this is the recognition of course that there is a divine justice to which human law must be ordered, in order to be law as in an unjust law is no law, the king is under God, the president is under God and ultimately, we the people are under God; we are in that way equally yoked.
From this then arises this recognition that all political authority whether located in the king or in the people is constrained authority. As Adam says, “natural rights located in the divine law constrain the makers of laws since there are prior duties to which men must correspond.” So, it was a shared view of the founders and has been the shared view of all biblical peoples that it is the greatest absurdity. Quoting Sam Adams again “to suppose that is in the power of one or any number of men at entering into society to renounce their essential rights or the means of preserving these rights. When the great end of civil government is just for the support, protection, and defense of those very rights.” And he goes on to say that “if men should through fear, fraud, or mistake, should in terms renounce or give up any of these natural rights – the eternal law of reason and the great end of society would vacate such a renunciation. The right to freedom being the gift of God and is not in the power of man to alienate that gift.” So, think about how some of our fellow Americans speak about liberty today. Adams appeals to the eternal law of reason and the great end of society to make the case that rights are prior to the positive law and can be, or in fact must be, subjected to evaluation on those grounds. A king, a constitution, a court, an agency which would promulgate and enforce an unjust law will cease to be a legitimate government since the very purpose of government is to secure man in liberty to obey God.
So, turning to an American catholic or papist source, I look back in some of the texts from James Cardinal Gibbons, who was the Archbishop of Baltimore in 1876. “Especially the sense in which kings governments and peoples are equally yoked under god” he wrote the “conflict between church and state has never died out because the church has felt it to be her duty in every age to raise her voice against the despotic and arbitrary measures of princes many of them chafed under the salutary discipline of the church, they wished to be rid of her yoke they desired to be governed by no law except the law of their licentiousness and passions.” And, as a Protestant American reviewer well said about 40 years ago, he was writing in 1876, and he was writing of Orestes Bronson who later converted to the catholic church, “it was a blessing of providence that there was a spiritual power on earth that could stand like a wall of brass against the tyranny of earthly sovereigns and say to them thus far you shall go and no farther and here you shall break your swelling waves of passion. She the church told princes that if the people have their obligations, they have their rights too. That if the subject must render to Caesar, the things that are Caesar, Caesar must render to god the things that are gods.”
This brings me to the second meaning of endorsing the view inherent in the Magna Carta. I think that a good society cannot avoid the task of defining the purpose of liberty. Here, we run into this other great deeply biblical principle that freedom is realized through the law and not in opposition to it. So, what are God’s things which must be rendered to Caesar? Surely no principle of liberal neutrality as John Stewart Mill would have had it would suffice to restrain a Caesar. Of course, Mill says that only protecting others from harm is the reason that we can coerce our fellow neighbors. But if Caesar can define any good act, say the obedience to the dictates of a right conscience such as the noble refusal exercise by jack the baker, if Caesar may define any good act as a harm against others, then the principle of neutrality will not restrain Caesar, it will not serve as a brass wall against tyranny, as Bronson would have had it, but rather harm prevention will itself become the brass boot of tyranny.
In the covid era, of course we have seen the poverty of a naked liberal harm principal writ large almost from the very beginning of the pandemic religious communities have had reason to complain that being prevented from the worship of God according to the dictates of conscience constitutes a more grave harm than the threat to public health. Who is to adjudicate these claims? And who indeed when the policymakers do not recognize the rights of conscience as even imposing a duty on citizens of potentially even civil disobedience? I’m also thinking of the very sad abuses against various religious communities during these times: Jewish communities in New York City, Christian and Catholic Churches that were shuttered and closed for months upon months. So, what is the purpose of law and what is our freedom for? These questions cannot be avoided in a free society.
The third and final meaning of ascent to the principles of Magna Carta today, is that religious toleration as understood in the British and American experience the legacy of Magna Carta includes not only a right to participate in certain let’s say religious or public rituals; entering certain buildings meeting with certain people congregating at certain times praying in public for instance, but even more fundamentally toleration, religious liberty requires protection of conscience and civil laws. So as Cardinal Gibbons wrote, “every act infringing on freedom of conscience is justly styled religious intolerance this religious liberty is the true right of every man because it corresponds with the most certain duty which God has put upon him in the heart of man.”
Here’s my moment to say now, the church teaches, Cardinal Gibbons said “that as man by his own free will fell from grace so of his own free will must he return to grace therefore conversion and coercion are two terms that cannot be reconciled it has ever been a cardinal maxim inculcated by pontiffs and other prelates that no violence or undue influence should be exercised by Christian princes or missionaries in their efforts to convert souls to the faith of Christ.” And he said the “greatest bulwark of civil liberty is the famous Magna Carta, its foundations of the British and also of American constitutional freedom. This religious liberty is a form of civil liberty grounded in a shared understanding of the religious purpose of human life which cannot be operationalized but through a well-formed conscience.” Cardinal Gibbons as might be expected for the Cardinal Archbishop of Baltimore, went on to remind his American readers that the Magna Carta was drafted by the catholic archbishop of canterbury, Stephen Langton, and the catholic barons of England. So, the cardinals said on the plains of Runnymede in 1215 they compelled King John to sign that paper which was the death blow to his arbitrary power and the cornerstone of constitutional government. Gibbons at that time concluded his treatment of civil and religious liberty with an exhortation for Catholics to carry on what he argued was her tradition of defense of first liberties. “The catholic church in resisting these laws,” he wrote “is not only fighting her own battles but she is contending for the principle of freedom of conscience everywhere but thank God.” He said in 1876, “that we live in a country where liberty of conscience is respected and where the civil constitution holds over us the ages of her protection without inter-meddling with ecclesiastical affairs from my heart” he wrote, “I say America with all thy faults, I love thee still, perhaps at this moment there is no nation on earth where the church is less trammeled, where she has more liberty to carry out her sublime destiny than in these United States.”
To what extent is any of this still true? Is the legacy of Magna Carta so understood by Cardinal Gibbons, 150 years ago still embodied today in the political and legal institutions of this great nation? Do we assent to the meaning of these principles as outlined here? I will leave this to our discussion, but a cursory assessment would certainly give reasons to pause.
Johnathan Silver: I’m going to quote Moses soon enough but I’m going to start with this, an American couple is on tour in England and one of their days in London they arrive at the Tower of London late. That makes them late to their visit to Buckingham Palace and in time the group finally arrives at Runnymede. The guide pretentiously announces there on this very spot the barons forced King John to concede, that even the mighty authority of the king was heretofore to be constrained by the law of the land forevermore, it was here that the historic Magna Carta was signed. The woman asked well when was that? The guide said it was 1215. I knew it she said, we missed it by 15 minutes. Now I love that corny dad joke because like all good corny dad jokes it actually conveys something serious too and it’s that in this case it’s that the way that we Americans think about time is sort of unusual. We Americans are young people, and our national history does not extend back very far when compared to the nations of the old world. For a million overdetermined reasons technological, political, economic, the American imagination is more prone than others to gather everything in history into a sort of flat simultaneous present. We have a sort of incorporating and assimilating genius, but the flip side of that genius is that it’s hard to restrain to escape that present. So rather than go deep on any one thing in Magna Carta, I want to make two points over the next 15 minutes or so let me just quickly name them and then I’ll go back over them with a little more depth.
Point number one, the history of how Magna Carta came to be is pretty interesting. But for our purposes, I actually think the afterlife of Magna Carta is a lot more interesting. It was issued and then sort of disappeared from political history and was then resurrected in a way that we should learn from. This is a point about history and tradition, remembering and forgetting. Point number two, the high political intrigue and succession battles about the rightful British sovereign John or Arthur and Britain’s territory in France, and the role of the pope this is one sort of analysis that leads to a certain kind of political explanation of why and how the barons were able to extract from John this charter in perpetuity. But underneath politics at that level, there’s a deeper substratum of political and moral thought that helps to illuminate the whole question of how and why kings should be constrained? This deeper mode of analysis, I believe is also found in the text of the Hebrew Bible and its worries about kings and their power. Now I don’t want to suggest that the Hebrew Bible is responsible for inspiring Magna Carta, that’s not my argument, instead I want to say that the limitations imposed by John in 1215 and those discussed in scripture do share a certain kind of conceptual affinity.
So my first point, history and tradition remembering and forgetting, Magna Carta is first and foremost a political document and so in an effort to learn more of its political origins I went in search of a historian with political wisdom. So here are some things that Winston Churchill says about it in his first volume of the History of the English-Speaking Peoples “after it was issued in 1215 in the next hundred years it was” he writes “reissued 38 times at first with a few substantial alternation alterations but retaining its original characteristics little more was heard of the charter until the 17th century after more than 200 years a parliamentary opposition struggling to check the encroachments of the stewards upon the liberty of their subjects rediscovered it and made it a rallying cry against oppression. Thus, was created the glorious legend of the charter of an Englishman’s liberties.” He goes on to observe that Magna Carta is entirely lacking in any spacious statement of principles of democratic government or the rights of man. It’s not a declaration of constitutional doctrine exactly but a practical document to remedy current abuses in the feudal system the 13th century was of course to be a great age of parliamentary development and experiment yet there’s no mention in Magna Carta of parliament or representation of any but the baronial class “the great watchwords of the future” Churchill writes “find no place here.” And yet if the 13th-century magnates understood little and cared less for popular liberties or parliamentary democracy, they had all the same laid hold of a principle which was to be of prime importance for the future development of English society and English institutions. Throughout the document it’s implied that here is a law which is above the king and which even he must not break. This reaffirmation of a supreme law and its expression is a general charter. In a general charter is the great work of Magna Carta and this alone justifies for Churchill the respect in which men have held it the root principle was destined to survive across the generations and rise paramount long after the feudal background of 1215 had faded into the past. Thus, Churchill on Magna Carta from which I derive two contentions that I think we need to discuss.
First, Churchill is of course right that the text does not stir us with Jeffersonian melodies about equality and Freedom. Magna Carta’s association with that would come centuries later and what would become the liberal tradition was the consequence of people like Edward Koch, and Thomas Paine, and come to think of it, Winston Churchill. For various reasons, they all found it valuable to resurrect this old document and put it to their own political purposes. And this leads me to ask what are the resources of our own past that seem to have no purchase now but stand in waiting ready to be lifted up, to elevate us, and inspire us and call us again to our better angels?
Second, Churchill seemed to me to be attuned to a larger and more capacious historical understanding in these lines and that more capacious historical understanding illuminates our own political limitations. Concede that the barons did not want to serve democracy as we understand it, concede that they wanted to constrain their political adversary, that is their own king. But in light of what’s happened since, we can see that all the same they did serve the future of democracy. Magna Carta is a sort of study in unintended consequences on a massive scale. It seems to me it’s consistent with what Tocqueville writes when he says that everywhere the various incidents in the lives of people are seen to turn to the prophet of democracy all men have aided and aided it by their efforts those who had it in view cooperating for its success, and those who did not dream of serving it, those who fought for it, and even those who declared themselves. Its enemies all have been driven pell mel on the same track all have worked in common, some despite themselves, others without knowing it as blind instruments in the hands of God. Now bringing these two contentions together I’d say that the human future is not fated to necessarily bend toward justice. And we can’t know exactly how our words and deeds will resound into eternity. But we nevertheless can recover and preserve our ancestors’ achievements as moral resources for the future.
Section two, a Biblical dilemma of kingship. Here, I want to begin with a passage not from the Hebrew bible itself but from the Siddur the Jewish prayer book that contains these lines, said three times each weekday and four times on the sabbath by traditionally observant Jews, “to Jerusalem your city this we ask of God may you return in compassion may dwell in it as you promised, may you rebuild it rapidly in our days as an everlasting structure, and install within it soon the throne of David blessed are you lord who builds Jerusalem.” I hear what this says, 22 times a week on normal weeks, Jews ask that God reinstate the throne of David in the land of Israel. We pray in other words for the re-establishment of a monarch there. The desire for a king is a very old an ancient Jewish desire embedded carried along conveyed in this prayer. Now our ancestors in the book of judges of course also yearned for a king the common refrain in that text in those years was that every man did which was right in his own eyes, it’s a sort of biblical formulation for anarchy. It was miserable for ancient Israel to live without a leader in battle and someone to dispense justice and peace. The nation was unstable, vulnerable to external attack and internal division, God eventually of course facilitated the anointment of kings and all of Israel’s kings. At that time men of flesh and blood who as is to be expected had mixed records of success. So, the absence of a king is not in the biblical worldview a sort of libertarian idol, it’s a world of strife. This is more the world of Thomas Hobbes, nevertheless, it’s actually in the first five books of Moses. Interesting I think that that text is not much preoccupied with kingship.
In fact, the only sustained discussion of it occurs in Israelite history well before judges, in Deuteronomy where Moses where Moses says this “when thou art come unto the land that the lord thy god giveth thee and you shall possess it and shall dwell therein and shall say I will set a king over me like all the nations that are about me. Thou shalt in any wise set him over thee a king whom the lord thy god shall choose one from among thy brethren shalt thou set a king over the over thee, thou mayest not set a stranger over thee which is not thy brother, but he shall not multiply horses to himself, nor cause the people to return to Egypt. To the end that he should multiply horses for as much as the lord hath said unto you shall henceforth return no more that way. Neither shall he multiply wives to himself that his heart shall turn away neither hell she neither shall he greatly multiply silver and gold. And it shall be when he sitteth upon the throne of his kingdom that he shall write him a copy of this law in a book out of which is before the priests the Levites and it shall be with him and he shall read there in all the days of his life, that he may learn to fear the Lord his God to keep all the words of the law and these statutes to do them. That his heart be not lifted above his brethren and that he turn not aside from the commandment to the right hand or to the left to the end that he may prolong his days in his kingdom he and his children in the midst of Israel”
So, the first and only time that Moses discusses the office of the monarch is to explain its disadvantages. Unless restrained, a king will irrigate over himself the people he will multiply horses, that is grow a military force and, then he’ll want to use it he will multiply wives to himself and multiply to himself silver and gold, that is he will involve the nation entangled political alliances and impose heavy taxes upon the people. Now thinking about this experience of the ancient Israelites at this point in scripture still on the threshold of the land of Canaan still in the wilderness the immediate form of political order that they have in their head is the regime that they were just delivered from, that is Egypt, a land of intense hierarchy and stratification where the ruler enjoyed not only absolute sovereign authority but was indeed himself a God among men.
That’s what the kind of king that that passage in Deuteronomy is warning against, that’s the kind of king looks like in the imagination of the Israelite. But there is I think something more general, and I think a deeper concern at work here. Earlier in Moses’s final oration to the people of Israel, earlier in Deuteronomy Moses makes a prediction, a prediction which I think contains a sort of moral wisdom about the biblical suspicion of kings. For the Lord your God he says is about to bring you to a godly land, a land of brooks of water springs and deeps coming out in valleys and in mountains a land of wheat and barley and vines and figs and pomegranates a land of olive oils and honey a land where not in penury will you eat you will lack nothing, in it a land whose stones are iron and from whose mountains will hold copper and you will eat and be sated and bless the lord your god on the goodly lands that he’s given, you watch yourself lest you forget the Lord your God and not keep his commandments and his laws and his statutes that I charge you today lest you eat and be sated and build goodly houses and dwell in them and your cattle and sheep multiply in silver and gold multiply and your heart becomes haughty and you forget the Lord your God who brings you out of the land of Egypt in the house of slaves who leads you through the great and terrible wilderness and this is I’m now coming to an end with Moses and you will say in your heart my power and the might of my hand made me this wealth and you will remember the lord your god for he it is who gives you power to make wealth in order to fulfill his covenant he swore to your fathers on this day it will be and it will be if you indeed forget the Lord your God and go after other gods and worship and bow to them I bear witness against you today that you will surely perish like the nations that the Lord caused to perish before you so shall you perish in as much as you do not heed the word the voice of the Lord your God. Now, this is extraordinary for Moses seems to be saying here something that is profoundly counterintuitive. This is something that I learned from Rabbi Sachs of blessed memory, the great danger to this nation is not slavery but freedom, not poverty but affluence, not danger but security not homelessness but finally at long last being at home, that is the great danger. The paradox is that when we have the most to thank God for that’s when we’re in danger of not thinking or even thinking of God at all. I think that’s a very deep human insight. All of us have a sort of temptation to forget about the dependencies and what we’ve all been given all of us somewhere secretly believe that we can achieve more by our own effort, that we want more. Well, who has the power to get whatever they want? Who in a monarchy has the authority and the temptation to believe that he deserves it all? That indeed he’s the Creator of all who in other words will be prone to the idolatry of the self, more than anyone else? The monarch. Now kings in this reading need extraordinary limits because they’re endowed with extraordinary power. Their desires are not different in kind from our own, they’re more dangerous than our own because they could actually realize them. In truth we have the same tendency to idolatry within the heart of each of us. Deuteronomy’s analysis of power and kingship is rooted in this observation about the dark temptations that we share that’s the world of kings of Deuteronomy, But let’s not also forget about the world of judges, the world without kings. So there’s a kind of biblical dilemma that these two voices in scripture set up for us. I think that the Bible resolves this dilemma in a way similar to the way that Magna Carta does. Given the choice between monarchy and anarchy, the nation of Israel chooses to have a limited monarchy whose power was not absolute. Now whether that is precisely the way that the barons who constrained John in 1215 were thinking about it that’s kind of hard to say, but it is the part of what Magna Carta has kept alive in the English-speaking world an inheritance that is now more important given all the opportunities our culture has given us to indulge in idolatrous delusions.
Mark Tooley: Before we go to the audience any questions or comments from among the three of you?
Walter Russel Mead: I told you what they would say.
Mark Tooley: Sure vindication. Now supposedly questions should be streaming to me online but I don’t see any so I may just have to ask you physically to raise your hand if you have a question or comment. Anyone here?
Questioner: This wasn’t the first document; my question is how is this document different from the ones before and the ones after it was created?
Walter Russel Mead: What happened is that this document, the one under King John was King John actually died about a year and a half after this document was issued. And as I say Pope Innocent III had declared it null and void. Then John’s son, who was about nine years old his regents in his name reissued it as a way to get the support of these barons who are still rebellious, and it sort of would go back and forth that kings didn’t necessarily want to observe everything, but they would be pushed to it in various cases by barons. So, things kind of kept coming back more or less to the principles in Magna Carta. Ultimately, about a hundred years later the debate gets more settled and it gets installed into something that’s ultimately becomes part of parliamentary law. And actually, to this day some of those provisions are still law in the UK, though many over the course of time have been repealed. So, this is kind of a landmark in a process, if that helps.
Questioner: Thank you. If I could address this to our lady of the Catholic, I’m afraid I might need absolution if I tried your last name, I apologize. I was struck by your comments and quotation from Bishop Gibbons, particularly the one that if I caught it correctly, that harm prevention becomes a strong boot to the neck of liberty or something to that effect. That is so current. My question is in your reading of given, did he attempt to provide a solution or an approach to try to prevent or ameliorate that effect?
Catherine Pakaluk: I think I have to disappoint you. I haven’t found anything directly in Gibbons that will speak to what you’re saying. I think that in his thought I will, well maybe this is helpful, this is something I was extremely taken with, which if you give me a minute, I find it in here but I’ll just share it with you after. He ends his treatment on religious liberty and freedom of conscience by saying that he desperately hopes that in the United States we don’t follow the European model of essentially having state support in any way for church communities and for churches. And it’s a little bit uh surprising. He says he visited a church and I think he was in France, and he remarked how nicely maintained the dwelling of the bishop was or something and bishop said yeah well this might look really great and we get these stipends and so on, but I’m completely hamstrung, I can’t teach what I think in conscience I should teach. So, I don’t know if that’s not very directly helpful, but I think that’s got to be relevant for our time.
Questioner: Thank you, panel, terrific discussion. There’s a wonderful speech by Winston Churchill, I think it was 1917-1918, it’s on July 4th, and he is praising the American declaration. He calls it the third great title deed in the freedom documents that make up the English-speaking people. And the other two documents he lists in that speech are the Magna Carta and the English bill of rights. So, he of course is so historically minded, Churchill was. We’ve lost that historical sensibility now. My question is do you think that the American founders not only there in Philadelphia at the constitutional convention, but as they’re thinking about the drawing of a bill of rights, do you think that they’re very conscious about the legacy of the Magna Carta as they’re trying to map out a particular bill of rights for the American people? Is it on their minds?
Walter Russel Mead: Yes, it was. Again, there’s not a lot in there about maintenance of mill ponds a few layers in the constitution. But the notion of limited law, and it’s actually remarkable how steep they were in British history. A lot of the Declaration of Independence is basically plagiarized from the English declaration of right, which is the document the English issued to justify their depriving James II of the throne in 1689. So, you know that they’re very consciously setting out their position. Even the fact that they named the supporters of the king in America, Tories, is taken from British party politics of the time. You can even see if you go, and you look at some of the speeches people gave during the civil war. When Abraham Lincoln gave the Gettysburg address people may remember that the speech that was more noticed than the Gettysburg address was one about a three-hour-long disquisition before, which was actually a disquisition on why the south was wrong to claim that they were standing in the in the tradition of the round heads of the English civil war, and how uh this civil war really proved that the north was on the right side of English history. So, there was very much a continuity there. Even again we’re not talking about ancient times, when I was in school, we were taught sort of British history as you know the thing you needed to know to even begin to understand American history, you had to have that grounding, I would wish that we could get back to a little bit more of that today.
Johnathan Silver: I also just to continue where Walter leaves off, that these are also a very shrewd political operator too. And the fact that the Magna Carta is referred to in the federalist, and also of course in the arguments against the federalists against the constitution by the anti-federalists, makes me think that there is a conscious desire to appropriate for political purposes than this charter. I mean Churchill referring to Magna Carta when he did makes me think that of course there’s a historical argument for that reference and understanding the history of liberty that way of course there is. But there is also a very practical political benefit to drawing more closely together the English-speaking peoples and inviting us to see ourselves as sharing a common reservoir of the same sort of tradition and Churchill is a master at that, of course the most masterful in the second world war when he had to really get the Americans to see themselves as fighting in for a common civilization. I think that the political uses of Magna Carta often serve that purpose.
Mark Tooley: I overlooked someone who had a question in here who was that? Anybody? Yes?
Johnathan Silver: So, this is like a nightmare to be asked at the Bible Museum to quote chapter and verse. I think it’s from Deuteronomy 17, but I can check my notes and check what I wrote down. But yes, the unleashing of appetites was in some construal’s of our political architecture sort of the point and one understanding of human freedom. But that is an understanding of human freedom that’s often been opposed by, in my view, deeper understandings of freedom that as we’ve all been saying, have sought to combine ordered liberty by combining liberty and law together. I do think there is multiple voices in the American tradition that have sought to do that but as to how it relates to contemporary America, I’m afraid in my view politics is really not the place where we see this. Politics is not the arena in which we see the decisions about human appetites most affected. What I think is that right now politics is such a trailing indicator of what happens in technology and culture that it’s in those other arenas of human endeavor that I think parents and children need to together, make conscious efforts to be counter cultural, and not to make liberty our aim our only aim, or that at least that degraded form of liberty, sometimes known as license.
Mark Tooley: I actually have received an online question apparently which is quite rich and complicated so let me see if I can say it correctly. If rights must not be disconnected from the duty to use the right properly, it seems like a person’s rights are in some ways contractually dependent on people using those rights properly. Thus, if the church is said to have rights could it theoretically lose those rights if it fails to embrace the duties that come with those rights? Isn’t that problematic?
Catherine Pakaluk: Was that random or was it directed at me? Goodness, I was going to say it’s good to be in the company of someone else, a person of the book who also has trouble quoting scripture. The Papists and the Jews are second to our evangelical brothers and sisters. I think I’d like to ask you to reread that question, but I think I recall the question. Is it possible for churches in particular to lose their rights if it fails to uphold the duties that come along with those rights? Yeah. I think that’s right. I think that the churches and certainly officers of the church, members of the church, are not above this this law. So, I want to ask her the question if they have something particular in mind, but I think the easy answer is yes. But that should be the legacy of the Magna Carta, that no one is above the law. Now of course you know adjudicating between different conceptions of the good and what belongs to that contract so to speak, well that’s the hard part.
Mark Tooley: I have another question here that’s briefer and Walter already sort of answered it. Asking what are the Biblical contributions to the Magna Carta? You mentioned preservation of the rights of the church, there’s a direct connection there, but anything more specific?
Walter Russel Mead: I don’t think any of those barons were known for their scripture scholarship. Now you know the Archbishop of Canterbury perhaps, but this is you know, this really was much more of a political document, and where you would look for biblical or religious influence would be the things that we were talking about, the presuppositions, the cultural assumptions, that go into the way they think about these things rather than, okay well you know, 2 Corinthians 3 says it should be this – and so that’s 0.4 in Magna Carta, that’s not how they did it.
Questioner: So, my question actually relates to something that I was just speaking with my professor about on the way over here. Which is the limitation of a government that already exists right. In this case it was at the point of a sword, where they had to try to impose limits on the government that exists. I think with the American government at least what we can see throughout history is that it constantly expands and expands and expands, and my question is, is it really a reasonable expectation to put restrictions on the government but not at the point of a sword? I don’t think anyone wants to see you know violence used but do you think there’s any sort of reasonable way to place restrictions on government to make it smaller maybe to hold it back that doesn’t involve the use of force? And I don’t know which of you feels best suited to answer that question, I feel like I’d be happy to hear from anyone of you.
Walter Russel Mead: Well, I think we have this technique in America, we call it election. And candidates who want a smaller government will run on that platform and candidates who want a larger platform can run on that, and the idea is that we’re supposed to vote for the one that we prefer. You know there is a sense of course in which government tends to expand as society becomes more complex, it’s not necessarily a bad thing, I mean just take an example in the 19th century most people got around on horses and buggies. Well, you don’t need complicated. You don’t need speed traps for horses and buggies, you don’t need a whole industry of litigation about who’s responsible for injuries in a horse and buggy accident. You know, so we have the freedom to drive on the highway at 70 miles an hour which is a freedom they didn’t have in the 19th century, but in order to make that freedom possible a whole lot of things have to be done. You need a state that can do more and different things, and obviously similarly you know if in an agricultural society you don’t have to worry about well if so and so is building a factory on his land that pollutes the river, that all these people depend on for drinking water. The government obviously has roles now it didn’t have. So when we think about the size of government and how that changes over time, we have to relate it to some degree to function, necessary function, and the question is how do you have a government that can exercise the necessary functions of government without then sort of going into the hyper functions of government? And that’s not a question that can be answered sort of once and for all because technology is changing, society is changing. It’s a question that has to be answered in each generation for each generation. So, I would say that might be the way to go about it, and what Magna Carta would uphold is that you do need a government that must be strong enough to do what government does, but the exercise of power must be limited by the true rights of the people.
Johnathan Silver: I also think there’s a worry behind your question that I also want to speak to.
And that is that people who are who are members of religious faith communities in America. If you’re worried about the growth of government, it’s an invitation for you to organize in civil society and try to supply with not idea in the world of ideas, but actually with your hands and the labor coming from the sweat of your brow to actually try to supply the things that are needed and that absent churches, and mosques, and synagogues undertaking those things government will try to then step in to do. Now, sometimes the caught that causality is reversed and government crowds out civil society, that there certainly is a precedent for that. But if one is worried it seems to me about government entering into specifically social functions then I think our houses of worship have a role to play in serving our fellow neighbors like that.
Speaker: While Alicia is giving him the microphone does anyone have a card because sometimes people don’t want to speak in the microphone, I can get your card. Do you have a index card with a question?
Questioner: Thank you for speaking with us today. Sorry trying not to get the echo too much. I was hoping if you know how as modern should we view the Magna Carta? More as you know something that’s elucidating pre-existing political principles and sentiments, something that’s continuous with the tradition versus being a novel break from the past a novel charter of liberty? And then as a quick side, Dr. Pakaluk, if that’s how you pronounce your last name, I was wondering if you knew if there was any scholastic response to the Magna Carta? I know St. Thomas Aquinas, I think was born in 1215, I could be incorrect about that, and I think it’s so interesting that he was born in that same year and lived in that same century so yeah.
Catherine Pakaluk: I regret to say I don’t know what the scholastic response was. I mean my temptation is to say which is going to be a surmise which is probably a terrible thing to do. My temptation is to say that Jonathan has mentioned this is a what we both stressed. I mean this is a British political thing that happens, and you know the early scholastics are not thinking very much about British politics, I sort of want to say that. So, my surmise is that there wasn’t you know a great deal of attention among the scholastics. That being said, you know the scholastics include a great number of people beyond Thomas Aquinas at that time. So, I wouldn’t be surprised if you know there were some murmurings around the edges but that’s this is just my hunch.
Walter Russel Mead: I think it would be more. There would have been considerable discussion about how government should function and in those discussions, there would be a lot of relevance to things that were at the heart of the Magna Cartacontroversy, but I don’t think it itself was a principle point of intellectual discussion at the time.
Catherine Pakaluk: Yeah, I mean it’s maybe obvious to say that in sort of the high tradition of catholic political theology, you know thinking a lot about sort of limits on executive power, it’s not a great attention of the high tradition of catholic political theology. In large part, because the church is thinking about the power of the church, and the church is headed by a monarch. And that monarch is limited but in a very different way from how we think about political power. And you know maybe this is a kind of blind spot for the catholic political theology. We’re in the middle of that debate now. I mean clearly this is a topic of a lot of fun right now, so it probably needs to be developed a little bit more.
Walter Russel Mead: At the time let’s not forget the biggest problem with government in 1215 anywhere in the western world was not that it was too strong, but that it was weak. That the state was incredibly fragile, and law did not, you know if you got robbed there was no police force, you know sort of a bunch of guys in armor riding around was about what you had, and they were as likely to pillage as to protect. So, in those days justice really came much more from the power of conscience and opinion, the fear of God much more than the fear of the police, or of the IRS – there was no IRS. So, the state, the way we perceive the power of the state is really a fairly modern thing that in the old days you’d often have in theory the emperor is the absolute ruler and his word is law, but in practice once you get five miles away from the imperial palace, and so you know having a bureaucratic state where with the telegraph and so on the rulers can actually keep track of what’s happening, and the amount of paperwork and bureaucracy necessary those are distinctively modern problems an effective state. And so, I don’t think it’s as a profound a criticism of catholic political thought. You know this is something real we really only begin to look at heart in the 19th century. I would say and we are definitely still wrestling with it intellectually and politically. But on Magna Carta, I just had another thought about the resonances of it, Magna Carta was particularly by the founding fathers taking in a kind of a bizarre twist you know it’s actually the barons limiting the power of the king. This was a civil war among Normans, that you know the English-speaking Normans conquer England in 1066 the founding fathers including Jefferson and Franklin have this idea that there was this healthy, Anglo-Saxon peasantry, pre-Norman, natural democracy in England. And that the Normans then come, and they impose the feudal system on England with all of the miseries it entails, and then there’s a gradual process of kind of fight back and recovery, which continues into the 17th and 18th century, that’s how our founding fathers interpreted this history. And so, Magna Carta, when a bunch when a bunch of Normans were basically telling the top Norman he couldn’t limit the lower Normans as much as he would like to is not exactly a fight in that but they saw it as a stage in that process. But to get the sense of how that still lives anybody here actually read the harry potter novels? Do kids still do that? Yes, you can tell in a harry potter novel and spoiler alert you might want to leave if you’re still reading you can always tell whether somebody is going to be good or evil in a harry potter novel. Do you know how? It’s infallible
If they have a Norman name, a French name they’re bad. Draco Malfoy, that’s dragon bad faith a Latin Norman name. Dolores Umbridge, again those are Latin roots there, okay they’re bad but if it’s Ron Weasley okay they’re good if it’s an Anglo-Saxon name. and you can even tell somebody like Severus snape like is he good or bad well Severus is bad Latin but snape the last name is good. She uses her language in this way to kind of communicate all sorts of feelings. So, the that sense that there’s a democratic undertow that is preserved in the popular memory and the good common sense of the people versus this aristocratic you know autocratic overlay that needs to be resisted you find that in American culture too, this does go back to the way the founders thought of Magna Carta. So, Harry Potter, Magna Carta.
Mark Tooley: Well it’d be good to conclude with Harry Potter but there was one more question over here from University of Dallas.
Questioner: I actually wanted to speak similar to something you had brought up that actually kind of helped me format my question which was in response to the earlier question that was from online that had the word right church in it like ten times. But I immediately thought when I heard that question of Aquinas and Elohim about his different hierarchies of laws, natural law, eternal law. I guess I want to ask y’all do you think the Magna Carta influenced his creation of that hierarchy of laws and do you think different forms of those laws were there than the Magna Carta?
Walter Russel Mead: As a historical matter, no. You know, he may have known that there was one, but I would be awfully surprised if Thomas Aquinas in particular had read it or had incorporated into his thinking it’s really only after England becomes a big power that other countries start paying attention to what’s going on in England. It just was a long way off as much a hairy barbarian just not very interesting to civilize people. For Aquinas it would be Roman law and this sort of evolution of canon law and civil law that would be much more the sorts of things he would be thinking about.
Catherine Pakaluk: I think you think about the, you know the teacher saying of St Thomas certainly there’s a kind of liberalism, be very careful to say this exactly right, there’s a kind of liberalism and attention to the law in SaintAugustine and of course Aquinas draws heavily from saint Augustine in terms of political order. But I mean certainly the ordering of law, eternal law and natural law, and this is something that Aquinas followed Aristotle in a certain sense Aristotle said that the law should rule, not man. Right and so the founders certainly thought that the American founders certainly thought they were following in that sense in even classical tradition right. And Aquinas also was a great student of Aristotle you know so these would be some of the obvious uh influencers of Aquinas. Then I think it would be very important to say at this point that you know Aquinas’s mastery of the scriptures both the Hebrew scriptures and the Christian scriptures is tremendous. And I take really these fundamental principles about law to be things which come forth very naturally from meditating on the scriptures. Going back to the things that Jonathan quoted and some of the things that I quoted, I don’t think you can read those sacred books cover to cover and come away sort of thinking that you know anybody on earth is not subject to divine law. So those are the places I would look.
Johnathan Silver: And in fact, you’ll correct me but I very much would suppose that is the sort of thing on the mind of Pope Innocent III when he would acquiesce in giving permission for John to sign away some of these.
Walter Russel Mead: He didn’t though. He excommunicated the barons before him before and repudiated Magna Carta.
Johnathan Silver: Oh, afterwards. Never mind.
Walter Russel Mead: Right, let’s say he was a very special guy.
Mark Tooley: All right it’s eight o’clock. I want to thank our excellent panelists for successfully representing Protestantism, Judaism, and Catholicism. Thank you to all of you for your intelligent participation and contributions. I think the Magna Carta exhibit is still open.
Yes, is it to January 2nd. But this evening is already closed it’s already done so if you’re like me you’ll have to come back to see it. But thank you so much.
Speaker: Please help me to thank Mark Tooley, Walter Mead, Catherine Pakaluk, and Jonathan Silver. [applause] Thank you for all of you for coming here today. Please go to our website and look at all events you’re going to see our next event in November is going to be related to the Mayflower Compact and we have one of our speakers here who presented today and did wonderfully. Thank you for contributing tonight and go safe home and thank you so much for coming to the Museum of the Bible.