Remember Magna Carta? First signed in June 1215 by King John of England, the Magna Carta is the first document to put into writing the principle that the king and his government was not above the law. I hadn’t thought much about it until I had the opportunity to visit the Salisbury Cathedral in England this summer.

The Salisbury Cathedral currently houses one of four copies of Magna Carta still in existence.[i]  The document itself is stored under dark drapes with dim lighting—no photography allowed. Outside of the drapes, there are various displays devoted to describing some of the history surrounding Magna Carta.  And the room itself can only be described as breathtaking—as is the entirety of the Salisbury Cathedral.

As I reflected on being in that historical and beautiful space reading the documents associated with the exhibits and watching school-aged kids on field trips bouncing from room to room, I wondered how much “air time” Magna Carta gets these days outside of field trips or travel to the Cathedral—or one of the few other locations that retain a copy of the document.[ii] I also wondered how many members of our younger generations would be more likely to guess Magna Carta is the name of a comic book character[iii] rather than source material for this country’s founding documents and legal doctrine.

Although I didn’t explore the latter question, I did explore the former; here’s a snapshot of what I learned:

History of Magna Carta

First and foremost, I got a refresher on the substance and history of Magna Carta.  Indeed, I even bought a “Pocket Magna Carta” from the Salisbury Cathedral gift shop. I think the Introduction to the pocket version of Magna Carta describes its historical context best:

Magna Carta, the Great Charter, is arguably the single most important legal document ever created.  From its origins as a peace treaty between a medieval king and his rebellious subjects, it has become widely regarded today as the embodiment of the ideal of individual protection under the law, guaranteeing freedom from the fear of imprisonment without due process of the law as well as the right to a fair and free trial.  These twin pillars underpin the justice systems of many states worldwide.  Throughout its 800-year history[[iv]], Magna Carta has been referenced again and again as a touchstone of democratic liberties.  It can be regarded as the forerunner to the Founding Documents of the United States of America, to the Declaration of the Rights of Man approved by the National Assembly of France in 1789, and to the key articles in the Universal Declaration of Human Rights, published in 1948 by the United Nations.[v]

Although Magna Carta was modified from its original version drafted in 1215, and although many of its clauses were repealed in the nineteenth century by the English Parliament, its underlying ideals have endured.[vi] In fact, in addition to Magna Carta language paraphrased into the Bill of Rights, “the text of Magna Carta found its way directly into the statute books of no fewer than seventeen states, most recently in North Dakota in 1943.”[vii]

Relevance of Magna Carta Today

Fast forward to the Twenty-First Century: despite Magna Carta’s historical significance to our founding principles, do lawyers and lawmakers still reference it? They do—albeit more at a national level than a local level.

A search for “Magna Carta” in Idaho caselaw revealed two opinions. The most recent of the two opinions is an Idaho Court of Appeals opinion from 2007, State v. Robinson.[viii] The Court in Robinson considered a suppression issue alleging a Fourth Amendment violation. Reference to Magna Carta was made in a special concurrence, reiterating Magna Carta’s influence on our constitutional rights.

Judge Gutierrez’s concurrence, like the majority in Robinson, recited the United States Supreme Court’s statement that “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.”[ix] The concurrence then noted the “‘ancient adage that a man’s home is his castle,’” and observed: “This noble precept is not just some forgotten vestige of post Magna Carta English history, but is embedded in the framework and fabric of our national consciousness through the Fourth Amendment.”[x]

Before Robinson, Magna Carta was also referenced in the dissent in State v. Searcy.[xi] One of the issues in Searcy was whether an insanity defense is constitutionally mandated in a criminal case. The majority held it is not.[xii] The dissent disagreed.

The dissent cited a number of United States Supreme Court decisions in support of its conclusion that due process does require an insanity defense, including a quotation from Justice Frankfurter’s concurring opinion in Malinski v. New York.[xiii] In Malinski, Justice Frankfurter wrote: “The safeguards of ‘due process of law’ and ‘the equal protection of the laws’ summarize the history of freedom of English-speaking peoples running back to Magna Carta and reflected in the constitutional development of our people. The history of American freedom is, in no small measure, the history of procedure.”[xiv]

Given that both Searcy and Robinson’s Magna Carta references trace back to United States Supreme Court cases, and given the United States Supreme Court’s common practice of interpreting the Constitution against a historical backdrop, it is perhaps unsurprising to learn that the Supreme Court frequently invokes Magna Carta as part of its analysis.[xv]

Historical Use of Magna Carta by the U.S. Supreme Court

My research revealed eighty-nine United States Supreme Court cases, most of which issued in this century, that reference Magna Carta, although the vast majority of those opinions only include one reference to some provision of or principle from Magna Carta. But the cases substantively address topics ranging from consumer protection and appropriations[xvi] to immigration[xvii] to property rights and the Takings Clause.[xviii] Of the eighty-nine cases, the one that includes the most citations to Magna Carta is Browning-Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc., decided in 1989.[xix]

            In Browning-Ferris, the Court considered a six-million-dollar punitive damages award in an antitrust case.[xx] One of the issues on appeal was whether the damages award violated the Eighth Amendment’s Excessive Fines Clause.[xxi][xxii] The Court noted its prior interpretations of the Eighth Amendment “suggests that the Clause does not apply to a civil-jury award of punitive damages.”[xxiii]

Rather, the Court’s “cases long have understood it to apply primarily, and perhaps exclusively, to criminal prosecutions and punishments.”[xxiv] Ultimately, the Court determined it did not need to “go so far as to hold that the Excessive Fines Clause applies just to criminal cases” and held that the Clause “does not constrain an award of money damages in a civil suit when the government neither has prosecuted that action nor has any right to receive a share of the damages awarded.”[xxv]

The Court reasoned that “[t]o hold otherwise . . . would be to ignore the purposes and concerns of the Amendment, as illuminated by its history.”[xxvi] The Court’s subsequent description of the history did not cite Magna Carta; it instead cited the limited attention to the Eighth Amendment in the First Congress, its ratification among the states, and Supreme Court cases interpreting the language of the amendment.[xxvii]

After reciting this nation’s history surrounding the Eighth Amendment, the Court turned to the petitioners’ challenge, which included the assertion that the Excessive Fines Clause “‘derives from limitations in English law on monetary penalties exacted in private civil cases to punish and deter misconduct.’”[xxviii]  The Court rejected the petitioners’ view, noting the history “recounted” by the Court did not “espouse[ ] that view” and characterizing the petitioners’ argument as one requiring the Court to “turn the clock hundreds of years further back to English history prior to Magna Carta.”[xxix] The Court summarized the petitioners’ Magna Carta-based argument as follows:

According to petitioners, amercements [[xxx]] were essentially civil damages, and the limits Magna Carta placed on the use of amercements were the forerunners of the 1689 Bill of Rights’ prohibition on excessive fines.  In their view, the English Bill of Rights and our Eighth Amendment must be understood as reaching beyond the criminal context, because Magna Carta did.  Punitive damages, they suggest, must be within the scope of the Excessive Fines Clause because they are a modern-day analog of 13th-century amercements.[xxxi]

Although the Court found petitioners’ argument “somewhat intriguing,” it “hesitate[d] to place great emphasis on the particulars of 13^th-century English practice, particularly when the interpretation [the petitioners] urged [the Court] to adopt appears to conflict with the lessons of more recent history.”[xxxii]

Regardless, the Court otherwise concluded that its “understanding of the use of amercements, and the development of actions for damages at common law, convince[d] [it] that petitioners’ view of the relevant history does not support the result they seek” because the concerns underlying Magna Carta’s limitations on amercements were “clearly inapposite in a case where a private party receives exemplary damages from another party, and the government has no share in the recovery.”[xxxiii]

In short, the Court found it “difficult to understand how Magna Carta, or the English Bill of Rights as viewed through the lens of Magna Carta, compel[led] [it] to read our Eighth Amendment’s Excessive Fines Clause as applying to punitive damages when those documents themselves were never so applied.”[xxxiv]

The Court’s Contemporary Use of Magna Carta

References to Magna Carta have also made appearances in some landmark decisions from the Supreme Court issued in this decade, including Obergefell v. Hodges[xxxv] and Dobbs v. Jackson Women’s Health Organization.[xxxvi]

In Obergefell, it was the dissent authored by Justice Thomas that rooted its reasoning in Magna Carta to reject the majority’s recognition of the fundamental right to marry inherent in the liberty of the person and the majority’s holding that same-sex couples could not be deprived of that right and that liberty.[xxxvii] Justice Thomas’s dissent opened with his position that the majority opinion was “at odds not only with the Constitution, but with the principles upon which our Nation was built.”[xxxviii]

Justice Thomas’s rationale was based, in part, on Magna Carta’s influence on the Fifth and Fourteenth Amendment due process clauses in the United States Constitution.[xxxix] In Justice Thomas’s view (as well as Justice Scalia’s), the proper understanding of the word “liberty” as used in our Constitution, and influenced by Magna Carta, is limited to freedom from physical restraint and cannot properly be interpreted to encompass a right to or liberty interest in same-sex marriage.[xl]

The citation to Magna Carta in Dobbs falls into the large single reference category that makes up the eighty-nine cases I found. In Dobbs, which overruled the previously recognized constitutionally protected right to an abortion, Justice Alito noted the Court’s practice of determining whether a right is “deeply rooted in [our] history and tradition,” and cited “Justice Ginsburg’s opinion for the Court in Timbs [as] a recent example.[xli]

Timbs, in turn,held that the “Eighth Amendment’s protection against excessive fines is ‘fundamental to our scheme of ordered liberty’ and ‘deeply rooted in this Nation’s history and tradition,” and the Court in Timbs “traced the right back to Magna Carta, Blackstone’s Commentaries, and 35 of the 37 state constitutions in effect at the ratification of the Fourteenth Amendment.”[xlii] Perhaps notably, Magna Carta was not referenced elsewhere in Justice Alito’s opinion or any other separate opinion authored in Dobbs.

But the single citation to Magna Carta suggests it held some persuasive value in terms of its historical influence on the majority’s opinion. And, highlighting Justice Ginsburg as the author of Timbs was surely intentional given Justice Ginsburg’s well-documented position on abortion rights, which was contrary to the holding in Dobbs.

Conclusion

Although I don’t anticipate Magna Carta becoming more prominent in Idaho’s jurisprudence, the trend in the United States Supreme Court, and the interpretive philosophy of several justices, suggests it will continue to play a more prominent role at the federal level.

Advocates should consider that trend when presenting their arguments, and commentators will surely have much to say about when and under what circumstances courts decide to accept or reject as persuasive “13^th-century English practice.” In the meantime, remembering and understanding the historical roots of our founding is always a worthwhile endeavor.

Judge Jessica M. Lorello is an Idaho native who graduated from Boise High School. She received a master’s degree in health care administration and her Juris Doctor degree from the University of North Carolina at Chapel Hill. After law school, she worked in private practice until 2004 when she joined the Criminal Law Division of the Idaho Attorney General’s Office. Governor Otter appointed Judge Lorello to the Idaho Court of Appeals in 2017. Judge Lorello is also an adjunct professor at the University of Idaho College of Law, is a member of the Law Related Education Committee of the Idaho Law Foundation and is a founding member of Attorneys for Civic Education.

Endnotes

[i] The Making of Magna Carta, UK Parliament, https://www.parliament.uk/ (last visited Sept. 4, 2024).

[ii] According to UK Parliament, two copies of Magna Carta are at the British Library and one at the Lincoln Castle.  Id.  One of the copies was on display at the National Archives as part of Magna Carta’s 800^th anniversary celebration.  This Day in History:  The Magna Carta, a Foundation of Our Democracy,” 2015 WL 3653166 (White House) (June 15, 2015).

[iii] “Manga,” not to be confused with Magna, “is an umbrella term for a wide variety of comic books and graphic novels originally produced and published in Japan.”  Amanda Pagan, A Beginner’s Guide to Manga, The New York Public Library, https://www.nypl.org/blog/2018/12/27/beginners-guide-manga, (last visited Sep. 4, 2024).  

[iv] In 2015, in celebration of the 800^th anniversary of Magna Carta, the Obama White House issued a press release reflecting on Magna Carta as the “foundation of our democracy.”  This Day in History:  The Magna Carta, a Foundation of Our Democracy,” 2015 WL 3653166 (White House) (June 15, 2015).  Then-Attorney General Holder also commemorated the anniversary in remarks delivered at the Global Law Summit.  Attorney General Holder Delivers Remarks at the Global Law Summit to Commemorate the 800-Year Anniversary of Magna Carta, 2015 WL 737059 (D.O.J.) (February 23, 2015).    

[v] Pocket Magna Carta, Bodleian Library (2016), https://bodleianshop.co.uk/products/pocket-magna-carta. (last visited Sept. 4, 2024).

[vi] Id.

[vii] Id.

[viii] State v. Robinson, 144 Idaho 496, 163 P.3d 1208 (Ct. App. 2007).

[ix] Robinson, 144 Idaho at 502, 163 P.3d at 1214 (quoting United States v. United States District Court, 407 U.S. 297, 313 (1972)).

[x] Robinson, 144 Idaho at 502, 163 P.3d at 1214 (quoting Georgia v. Randolph, 547 U.S. 103, 115 (2006)).

[xi] State v. Searcy, 118 Idaho 632, 798 P.2d 914 (1990).

[xii] Searcy, 118 Idaho at 635, 798 P.2d at 917.

[xiii] Searcy, 118 Idaho at 646, 798 P.2d at 928 (citing Malinski v. New York, 324 U.S. 401, 413-14) (Frankfurter, J., concurring).

[xiv] Malinski, 324 U.S. at 413–14.

[xv] Magna Carta is also frequently referenced in briefs submitted to the United States Supreme Court.  A search using the phrase “magna carta” in the United States Supreme Court indicates a total of 1,372 briefs filed that have some reference to Magna Carta.

[xvi] Consumer Financial Protection Bureau v. Community Services Assoc. of America, 601 U.S 416, 428 (2024).

[xvii] Department of Homeland Security v. Thuraissigiam, 591 U.S. 103, 141-42 (2020) (Thomas, J., concurring).

[xviii] Horne v. Department of Agriculture, 576 U.S. 350, 358 (2015).

[xix] Browning-Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257 (1989).

[xx] Id.

[xxi] Id.

[xxii] The Eighth Amendment reads: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

[xxiii] Browning-Ferris, 492 U.S. at 262.

[xxiv] Id.

[xxv] Id. at 263-64.

[xxvi] Id. at 264.

[xxvii] Id. at 264-68.

[xxviii] Id. at 267 (quoting Brief for Petitioners 17).

[xxix] Id. at 268.

[xxx] “Amercements were payments to the Crown, and were required of individuals who were ‘in the King’s mercy,’ because of some act offensive to the Crown.”  Id. at 269.

[xxxi] Id. at 268.

[xxxii] Id.

[xxxiii] Id. at 268-72.

[xxxiv] Id. at 272-73.

[xxxv] Obergefell v. Hodges, 576 U.S. 644 (2015).

[xxxvi] Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022).

[xxxvii] Obergefell, 576 U.S. at 681.

[xxxviii] Id. at 721.

[xxxix] Id. at 723.

[xl] Id. at 724-25.

[xli] Dobbs, 597 U.S. at 237 (brackets omitted).

[xlii] Id. at 237-38 (quoting Timbs v. Indiana, 586 U.S.).