Where Do Constitutions Come From?

Did it all start in Southern Flanders, a famous Sunday of July 1214? Was it over a tax issue? Certainly, John Lackland, younger brother of Richard Lionheart, had been defeated at the battle of Bouvines by the French monarchy. English nobles had to be heavily taxed to pay for war against the King of France (whose vassal John nominally was). In the summer of 1214, everything seemed lost for the English. However, the outcome of that decisive battle, narrated in masterly detail by Georges Duby, did not only alter the balance of power between the powerful, but lead to a rethinking of the relations between the sovereign, barons, and other subjects of the monarchy.

The following year, in June 1215, King John, after having lost his French domains, came to terms with the nobles as well as the bourgeois, who were seeking respite from excessive taxation: the king put in writing the whole set of rights that were traditionally enjoyed by English subjects. In what has gone down in the centuries as the Magna Carta, the rights of the Church and clergy are defined, as are those of vassals toward the monarch, and especially the rights granted to free men, the City of London, and merchants.

In addition of this, a self-defense mechanism vis-à-vis central power was established: each time the monarchy needs to levy additional taxes, usually to raise an army according to feudal custom, it will have to ask for the approval an assembly of lords and commoners. The Magna Carta, at first called Carta Libertatum (where libertates is here a synonym for rights), was drafted by mixing feudal tradition and institutional innovation. The 63 original stipulations of the Magna Carta (which was abolished two months later, only to be later re-approved) form the basis of the English constitutional model and indeed of all constitutions. In this constitutionalism of the origins, sovereign power did not represent the political community in its entirety, and the principle of legal equality had yet to be put forward as the basis for the protection of individual rights. In this sense, the charter was a constitutional document which, while following feudal usage about norms and relations with the sovereign, had to keep together a range of quite different social forces: feudal lords, church clerics, mercantile trades, and craft guilds. The Magna Carta established an English territorial and political space, by setting the boundaries dividing the king's unitary rule from the feudal domains.

From that moment on, a crucial innovation was destined to prevail over ancient norms: the sovereign could not longer act without limits, if it interfered with the rights of particular subjects. Now the monarch's course of action had to be approved by those who could be potentially damaged by it, and the Parliament, where justice had been traditionally administered in the Middle Ages, was bound to become the place where participation to political decision-making is expressed.