There is a widespread opinion on both sides of the Atlantic that as the Magna Carta is to the British attachment to rights, the American version of this attachment is to be found in the U.S. Bill of Rights. Sometimes we hear more: that not only the origin, but also the substance of the U.S. version, is to be found in the Magna Carta.
To be sure, we have to start the rights narrative somewhere and since participants in the rights debate over 400 years don’t seem inclined to go further back than the Magna Carta, it seems reasonable to start there. And despite the feudal language and medieval concerns that run through, and thus date, the document, there is something enduring there that appeals to subsequent generations.
We suggest that the enduring quality is an appeal through the centuries that those who govern us do so in a reasonable manner. And all the better to secure the proposition that rulers exercise their power in a reasonable manner, we write down what we think is unreasonable conduct. Thus a list of what those in authority can’t do emerges.
In particular, we might say that the Magna Carta calls for the rule of law in opposition to the rule of unreasonable men. Furthermore, the rule of law is to be secured by an attachment to the due process of law.
The question then is how much of the Magna Carta made its way into the U. S. Bill of Rights? The answer is 9 of the 26 provisions in the Bill of Rights can be traced back to the Magna Carta. That’s about a third or 33%. And these provisions are heavily concerned with the right to petition and the due process of law.
The Magna Carta does not call for an abolition of the monarchy or a change in the feudal order. Nor does it call for religious freedom or freedom of the press. The U.S. Bill of Rights, however, presupposes the abolition of monarchy and feudalism; the American appeal to natural rights raises the question of religious freedom and freedom of the press.
So, we have two influences on the U.S. Bill of Rights: 1) the Magna Carta due process tradition that is incorporated in a third of the Bill of Rights and 2) the American home grown tradition of natural rights that is incorporated in two-thirds of the Bill of Rights.