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THE MIXED LEGACY OF MAGNA CARTA FOR AMERICAN RELIGIOUS FREEDOM

  • Steven K. Green (a1)
Abstract

In 2015 Magna Carta celebrated its 800th anniversary. The Great Charter has been widely heralded as a fount of many rights that are highly valued in British and American law. One right that people have identified in the Carta is that of religious freedom. Magna Carta contains two provisions guaranteeing freedom of the church from government authority. In 2013, the United States Supreme Court relied on that authority in a ruling that affirmed the principle of religious autonomy. This article argues that relying on the legacy of Magna Carta for the principle of religious freedom is tenuous: the document had little influence on the development of the First Amendment. Even Magna Carta's authority for the principle of church autonomy is overstated, as the Carta had nothing to do with the development of that principle in American law. Finally, judicial reliance on Magna Carta for the principle of religious freedom risks elevating protections for religious institutions over the interests of individuals. As a result, the legacy of Magna Carta for the principle of religious freedom is mixed, at best.

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References
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1 See “David Cameron's Ignorance over Magna Carta and Rule Britannia Exposed,” Telegraph, Sept. 27, 2012; “Magna Carta's Meaning Was a Mystery to Prime Minister David Cameron Three Years Ago,” Huffington Post, June 15, 2015.

2 See Hazeltine, H. D., “The Influence of Magna Carta on American Constitutional Development,” Columbia Law Review 17, no. 1 (1917): 1–33; Howard, A. E. Dick, The Road from Runnymede: Magna Carta and Constitutionalism in America (Charlottesville: University Press of Virginia, 1968).

3 Jones, Dan, Magna Carta: The Birth of Liberty (New York: Viking Press, 2015); O'Connor, , foreword to Magna Carta and the Rule of Law, ed. Magraw, Daniel Barstow, Martinez, Andrea, and Brownell, Roy E. (Chicago: American Bar Association, 2014), xixvii , at xiv.

4 See Stephen J. Wermiel, “Magna Carta in Supreme Court Jurisprudence,” in Magraw, Martinez, and Brownell, Magna Carta and the Rule of Law, 111–40, at 111 (noting that Magna Carta is referred to in more than 170 Supreme Court cases).

5 Obergefell v. Hodges, 135 S. Ct. 2584, 2640 (2015) (Thomas, J., dissenting).

6 Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, 130 S. Ct. 694, 702–03 (2013).

7 See Little, David, “Differences over the Foundation of Law in Seventeenth- and Eighteenth-Century America,” in Magna Carta, Religion and the Rule of Law, ed. Griffith-Jones, Robin and Hill, Mark (Cambridge: Cambridge University Press, 2015), 136–54.

8 Watson v. Jones, 80 U.S. 679 (1872); Kedroff v. St. Nicholas Cathedral, 344 U.S. 94 (1952); Presbyterian Church v. Hull Memorial Presbyterian Church, 393 U.S. 440 (1969); Serbian Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976).

9 Bobrick, Benson, Angel in the Whirlwind: The Triumph of the American Revolution (New York: Penguin Books, 1997), 463.

10 Many scholars trace the modern notion of due process of law to chapter 39 of Magna Carta.  Hazeltine, “The Influence of Magna Carta,” 3–5; Gedicks, Frederick Mark, “An Originalist Defense of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, and the Fifth Amendment,” Emory Law Journal 58, no. 3 (2009): 585673 , at 596–98.

11 Helmholz, R. H., “Magna Carta and the Ius Commune,” University of Chicago Law Review 66, no. 2 (1999): 297371 , at 298, 362.

12 Maleiha Malik, “Magna Carta, Rule of Law and Religious Diversity,” in Griffith-Jones and Hill, Magna Carta, Religion and the Rule of Law, 248–63, at 248.

13 Cardozo, Benjamin N., “Faith and a Doubting World,” in Selected Writings of Benjamin Nathan Cardozo, ed. Hall, Margaret E. (New York: Fallon, 1947), 99106 , at 104.

14 Magna Carta (1215), https://www.bl.uk/magna-carta/articles/magna-carta-english-translation; Corwin, Edward S., The “Higher Law” Background of American Constitutional Law (Ithaca: Cornell University Press, 1955), 3035 .

15 Gedicks, “An Originalist Defense of Substantive Due Process,” 596–614.

16 Howard, The Road from Runnymede, 54.

17 Ibid., 14–23, at 15.

18 Ibid., 35–48; “The Massachusetts ‘Parallels’ of 1646,” in ibid., appendix, 401–11.

19 Hazeltine, “The Influence of Magna Carta,” 9–11; Haskins, George Lee, Law and Authority in Early Massachusetts (New York: Macmillan, 1960), 124–40; Green, Steven K., Inventing a Christian America (New York: Oxford University Press, 2015), 8486 .

20 Gedicks, “An Originalist Defense of Substantive Due Process,” 616; Hazeltine, “The Influence of Magna Carta,” 6.

21 Bailyn, , The Ideological Origins of the American Revolution (Cambridge, MA: Belknap Press of Harvard University Press, 1967), 187. See also Lutz, Donald S., The Origins of American Constitutionalism (Baton Rouge: Louisiana State University Press, 1988), 59; Gedicks, “An Originalist Defense of Substantive Due Process,” 614–21; Howard, The Road from Runnymede, 170–87.

22 Kurland, , “Magna Carta and Constitutionalism in the United States: ‘The Noble Lie,’” in The Great Charter: Four Essays on Magna Carta and the History of Our Liberty (New York: Pantheon Books, 1965), 4874 .

23 Madison, James, Notes of Debates in the Federal Convention of 1787 (Athens: Ohio University Press, 1984); Howard, Road from Runnymede, 220 (“Magna Carta may never have been mentioned at all during the debates.”).

24 The Federalist Papers , ed. Rossiter, Clinton (New York: New American Library, 1961), no. 84.

25 Howard, Road from Runnymede, 239–40.

26 Lutz, The Origins of American Constitutionalism, 62.

27 Veit, Helen E., ed., Creating the Bill of Rights: The Documentary Record from the First Federal Congress (Baltimore: Johns Hopkins University Press, 1991), 80.

28 Howard, Road from Runnymede, 230–36, 270–71; Cogan, Neil H., ed., The Complete Bill of Rights (New York: Oxford University Press, 1997), 337–60; Little, “Differences over the Foundation of Law in Seventeenth- and Eighteenth-Century America,” 136–54.

29 Two clauses of the Magna Carta apply:

(1) FIRST, THAT WE HAVE GRANTED TO GOD, and by this present charter have confirmed for us and our heirs in perpetuity, that the English Church shall be free, and shall have its rights undiminished, and its liberties unimpaired. That we wish this so to be observed, appears from the fact that of our own free will, before the outbreak of the present dispute between us and our barons, we granted and confirmed by charter the freedom of the Church's elections—a right reckoned to be of the greatest necessity and importance to it—and caused this to be confirmed by Pope Innocent III. This freedom we shall observe ourselves, and desire to be observed in good faith by our heirs in perpetuity … .

(63) IT IS ACCORDINGLY OUR WISH AND COMMAND that the English Church shall be free, and that men in our kingdom shall have and keep all these liberties, rights, and concessions, well and peaceably in their fullness and entirety for them and their heirs, of us and our heirs, in all things and all places for ever.

Magna Carta (1215), https://www.bl.uk/magna-carta/articles/magna-carta-english-translation.

30 Holt, J. C., Magna Carta, 2nd ed. (Cambridge: Cambridge University Press, 1992), 216–18, 284–85; John W. Baldwin, “Due Process in Magna Carta: Its Sources in English Law, Canon Law and Stephen Langton,” in Griffith-Jones and Hill, Magna Carta, Religion and the Rule of Law, 31–52, at 47–48.

31 Berman, Harold J., Law and Revolution: The Formation of the Western Legal Tradition (Cambridge, MA: Harvard University Press, 1983), 9697 ; Gedicks, Frederick Mark, “True Lies: Conossa as Myth,” Journal of Contemporary Legal Issues, no. 21 (2013): 133–44; Esbeck, Carl H., “Dissent and Disestablishment: The Church-State Settlement in the Early American Republic,” BYU Law Review, no. 4 (2004): 13851592 , at 1407–8.

32 Quoted in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, 130 S. Ct. 694, 702 (2013).

33 Torke, James W., “The English Religious Establishment,” Journal of Law and Religion 12, no. 2 (1995–96): 399445 , at 406–8.

34 Curry, Thomas J., The First Freedoms: Church and State in America to the Passage of the First Amendment (New York: Oxford University Press, 1986), 6.

35 Bond, Edward L., Damned Souls in a Tobacco Colony: Religion in Seventeenth-Century Virginia (Macon: Mercer University Press, 2000), 177222 .

36 Buckley, Thomas E., Church and State in Revolutionary Virginia, 1776–1787 (Charlottesville: University Press of Virginia, 1977), 5, 911 ; Curry, The First Freedoms, 30.

37 John Adams, “A Dissertation on Canon and Feudal Law” (1765), at http://teachingamericanhistory.org/library/document/a-dissertation-on-the-canon-and-feudal-law/; Madison, James, “Detached Memoranda” (1817), in The Sacred Rights of Conscience, ed. Dreisbach, Daniel L. and Hall, Mark David (Indianapolis: Liberty Fund, 2009), 589–93; Thomas Jefferson, Notes on Virginia (1781), ibid., 484–86.

38 Smylie, James H., “Protestant Clergy, the First Amendment and the Beginnings of a Constitutional Debate, 1781–91,” in The Religion of the Republic, ed. Smith, Elwyn A. (Philadelphia: Fortress Press, 1971), 116153 , at 153.

39 Memorial and Remonstrance” (1785), in Church and State in American History: The Burden of Religious Pluralism, 2nd ed., ed. Wilson, John F. and Drakeman, Donald L. (Boston: Beacon Press, 1987), 6970 ; Buckley, Church and State in Revolutionary Virginia, 26.

40 “Act for Establishing Religious Freedom” (1786), in Wilson and Drakeman, Church and State in American History, 73; Jefferson to Rev. Samuel Millar, Jan. 23, 1808, in ibid, 79.

41 Butler, Jon, Awash in a Sea of Faith: Christianizing the American People (Cambridge, MA: Harvard University Press, 1990), 225–56 (Butler coined the rich phrase “spiritual hothouse” to describe the expansive religious expression during the antebellum period.). This discussion is based on Green, Steven K., The Second Disestablishment: Church and State in Nineteenth-Century America (New York: Oxford University Press, 2010), 221–27.

42 Attorney General v. Pearson, 3 Merivale 353 (1817), quoted in Watson v. Jones, 80 U.S. 679, 724 (1871).

43 Green, The Second Disestablishment, 221–27.

44 App. v. Lutheran Congregation, 6 Pa. 201, 210 (1847).

45 Hendrickson v. Shotwell, 1 N.J. Eq. 577, 633 (1832).

46 App. v. Lutheran Congregation, 6 Pa. at 210; Green, The Second Disestablishment, 221–27.

47 Mt. Zion Baptist Church v. Whitmore, 49 N.W. 81, 86 (Iowa 1891); Philomath College v. Wyatt, 37 P. 1022, 1023 (Ore. 1894).

48 German Reformed Church v. Commonwealth, 3 Pa. 282, 291 (1846).

49 App. v. Lutheran Church, 6 Pa. 201 (1847); Green, The Second Disestablishment, 221–27.

50 Watson v. Jones, 80 U.S. 679 (1871).

51 Ibid., 727.

52 Ibid., 714.

53 Ibid., 728–29.

54 Ibid., 733–34.

55 Ibid., 730.

56 Connitt v. Reformed Protestant Dutch Church, 9 Stickels 551, 562 (N.Y. 1874).

57 Harmon v. Dreher, 1 Speers Eq. 87, 120 (S.C. 1842).

58 Pounder v. Ash, 63 N.W. 48, 50 (Neb. 1895).

59 Green, The Second Disestablishment, 221–27.

60 Everson v. Board of Education, 330 U.S. 1 (1947).

61 Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in North America, 344 U.S. 94 (1952).

62 Ibid., 116.

63 Presbyterian Church v. Hull Memorial Presbyterian Church, 393 U.S. 440 (1969); Serbian Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976).

64 Act of Uniformity, 1662, 14 Car. 2, ch. 4; Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, 130 S. Ct. 694, 703 (2013).

65 Buckley, Church and State in Revolutionary Virginia, 10.

66 Pratt, John Webb, Religion, Politics and Diversity: The Church-State Theme in New York History (Ithaca: Cornell University Press, 1967), 3746 .

67 Baker v. Fales, 16 Mass. 488 (1820); Green, The Second Disestablishment, 141–45.

68 Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in North America, 344 U.S. 94, 116 (1952).

69 National Labor Relations Act, 29 U.S.C. § 151, et seq. (1947); Fair Labor Standards Act, 29 U.S.C. § 201, et seq. (1938); Equal Employment Opportunity Act, 42 U.S.C. § 2000 (1964).

70 National Labor Relations Board v. Catholic Bishop of Chicago, 440 U.S. 490 (1979).

71 42 U.S.C. § 2000e-1 (1972).  See generally, Steven K. Green, “Religious Discrimination, Public Funding, and Constitutional Values,” Hastings Constitutional Law Quarterly 30, no. 1 (2002): 1–55.

72 Corporation of the Presiding Bishop v. Amos, 483 U.S. 327 (1987).

73 See Griffin, Leslie C., “The Sins of Hosanna-Tabor,” Indiana Law Journal 88, no. 3 (2013): 9811019 , at 1002–6.

74 Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, 130 S. Ct. 694, 702 (2013).

75 Ibid., 706.

76 Ibid., 702, 706; Tore Lindholm, “Magna Carta and Religious Freedom,” in Magraw, Martinez, and Brownell, Magna Carta and the Rule of Law, 193–226, at 220–23.

77 Magna Carta and the Rule of Law, x111–x1v; Holt, Magna Carta, 378–405.  My thanks to Professor Charles Donahue for bringing this point to my attention.

78 According to Holt, Coke never used the Charter of 1215 but based his commentaries on the 1225 reissue. Holt, Magna Carta, 20.

79 Griffin, “The Sins of Hosanna-Tabor,” 1007.

80 Lindholm, “Magna Carta and Religious Freedom,” 201.

81 Ibid., 196 (“[I]t inescapably follows that Magna Carta did not provide for religious freedom. Nor was protection of religious freedom, conceived as shielding religious diversity and change, detectably anticipated by King John or by any coauthor of Magna Carta in 1215.”).

82 Employment Division v. Smith, 494 U.S. 872 (1990).

83 Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, 130 S. Ct. 694, 706–07 (2013).

84 Griffin, “The Sins of Hosanna-Tabor”; Corbin, Caroline Marla, “The Irony of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC,” Northwestern University Law Review 106, no. 2 (2012) 951–71 (originally published in Northwestern University Law Review Colloquy 106 (2011): 96–110, http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1057&context=nulr_online).

85 Lindholm, “Magna Carta and Religious Freedom,” 223.

86 Griffin, “The Sins of Hosanna-Tabor,” 989.

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