Can Liberty be Bought and Sold?

A People's Penny for the Magna Carta

Magna Carta is up for sale next week at Sotheby's and this last week it was up for grabs in the U.S. Supreme Court.

Privatized in auction, this thirteenth century version of Magna Carta has ceased to be common property. Of course, it is only a foot and a half of vellum (sheep's skin), and there are other copies. This one of 1297 was the first time the charter became statute law, and it has remained ever since the first in the statute books. The Texas millionaire, Ross Perot, purchased it in 1984 and loaned it to the National Archives in whose rotunda it has been exhibited, until now, alongside the U.S. Constitution and the Bill of Rights. It belongs with them, historically, legally.

In the spring of 1776 Tom Paine wrote Common Sense. He called on Americans to frame "a continental charter, or Charter of the United Colonies (answering to what is called the Magna Carta of England)." He called for independence from the Crown and unity among the colonies. The Declaration of Independence was the first result of his call and it named several violations of Magna Carta in the 27 usurpations by George III including his "transporting us beyond Seas to be tried for pretended offences."

The U.S. Constitution of 1789 came after, and habeas corpus, "the Great Writ of Liberty" as it is known in English law, figures in its article one section nine. We find Magna Carta again in the Fifth Amendment of the Bill of Rights, and in the Fourteenth Amendment following the Civil War, because in those amendments persons are guaranteed "due process of law."

In the cases heard last week, 5 December, sixteen petitioners (four from Kuwait, twelve from Yemen) in Khaled A.F. Al-Odah et al v. U.S.A. quote Magna Carta's chapter 39, "No freeman shall be taken, or imprisoned, or disseised, or outlawed, or exiled, or in any way destroyed, nor will we go upon or send upon him, except by the lawful judgment of his peers or by the law of the land." Those final five words became "due process of law." The entire chapter was included in some colonial charters, it pervaded common law, and in time parts entered the U.S. Constitution.

I have quantified the relation of Magna Carta to the U.S. Constitution as interpreted by the Supreme Court by finding that it was cited by name 407 times in 195 different cases between 1790 and 2005. The cases concern major issues of American history ­ slavery, women's rights, corporations, death penalty, jury trials. The decisions in these cases turned on habeas and due process.

These precisely are denied to the Guatánamo Bay prisoners, first by President Bush and then by the Military Tribunals Act. Will the U.S. Supreme Court, sitting as it does in a chamber under a marble frieze which includes a seven foot bas-relief of a troubled King John gripping Magna Carta as if life depended on it, find for Magna Carta and give the prisoners a fair and square hearing?

Some due processes of law have been omitted by the Military Commissions Act of 2006: the prohibition of evidence obtained by torture, the ability to confront witnesses, the right to be represented by counsel, and the opportunity to rebut argument and testimony. The military tribunals are therefore an inadequate substitute for the remedies provided by habeas corpus. Two other provisions deriving from the same chapter are also relevant to the cases. Trial by jury and the prohibition of torture, both denied by Congress and the President to the Gitmo prisoners, have been carefully nurtured over the centuries from the tiny seeds in the same chapter of Magna Carta.

At one time these principles of Magna Carta comprised our common sense of liberty. Now that common sense is lost. There is a long shot that common sense may be recovered by discovering a sense of the commons, as follows:

Magna Carta is called Magna Carta because there was a smaller one, the Charter of the Forest. They both were lost after 1215 only to be recovered on 11 September 1217. Then, a new and profound theme appeared in The Great Charters of the Liberties of England, a theme expressed in one of the most complex and beautiful words of English language, the commons.

Chapter 7 of the Charter was amended to provide widows with fuel in the commons. Moreover, the entire Charter of the Forest recognized common rights to what in that day and age were hydrocarbon energy resources, or a commoner's wherewithal in the woodlands. The commons can act as a check to the greed of privatization, the lust for power, and the ambition for empire.

The sale at Sotheby's parallels the selling off of forests in Sumatra, Montana, Congo, Chiapas, Colorado - it is world-wide. And though it is merely an old piece of skin (vellum), still something of the spirit of our discommoning times is expressed by this sale: Ross Perot bought it for $1.5 million in 1984 and estimates for its sale next week go as high as $30 million.

Yet, can liberty be bought and sold? After chapter 39 comes chapter 40, and King John promises "to no one will we sell, to no one deny or delay right or justice."