Pursuing these important topics further, we see that the destruction of the Charter of the Forest, and its obliteration from memory, relates rather closely to the continuing efforts to constrain the promise of the Charter of Liberties. The "New Spirit of the Age" cannot tolerate the pre-capitalist conception of the Forest as the shared endowment of the community at large, cared for communally for its own use and for future generations, protected from privatization, from transfer to the hands of private power for service to wealth, not needs. Inculcating the New Spirit is an essential prerequisite for achieving this end, and for preventing the Charter of Liberties from being misused to enable free citizens to determine their own fate.
Popular struggles to bring about a freer and more just society have been resisted by violence and repression, and massive efforts to control opinion and attitudes. Over time, however, they have met with considerable success, even though there is a long way to go and there is often regression. Right now, in fact.
The most famous part of the Charter of Liberties is Article 39, which declares that "no free man" shall be punished in any way, "nor will We proceed against or prosecute him, except by the lawful judgment of his peers and by the law of the land."
Through many years of struggle, the principle has come to hold more broadly. The U.S. Constitution provides that no "person [shall] be deprived of life, liberty, or property, without due process of law [and] a speedy and public trial" by peers. The basic principle is "presumption of innocence" -- what legal historians describe as "the seed of contemporary Anglo-American freedom," referring to Article 39; and with the Nuremberg Tribunal in mind, a "particularly American brand of legalism: punishment only for those who could be proved to be guilty through a fair trial with a panoply of procedural protections" -- even if their guilt for some of the worst crimes in history is not in doubt.
The founders of course did not intend the term "person" to apply to all persons. Native Americans were not persons. Their rights were virtually nil. Women were scarcely persons. Wives were understood to be "covered" under the civil identity of their husbands in much the same way as children were subject to their parents. Blackstone's principles held that "the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs every thing." Women are thus the property of their fathers or husbands. These principles remain up to very recent years. Until a Supreme Court decision of 1975, women did not even have a legal right to serve on juries. They were not peers. Just two weeks ago, Republican opposition blocked the Fairness Paycheck Act guaranteeing women equal pay for equal work. And it goes far beyond.
Slaves, of course, were not persons. They were in fact three-fifths human under the Constitution, so as to grant their owners greater voting power. Protection of slavery was no slight concern to the founders: it was one factor leading to the American revolution. In the 1772 Somerset case, Lord Mansfield determined that slavery is so "odious" that it cannot be tolerated in England, though it continued in British possessions for many years. American slave-owners could see the handwriting on the wall if the colonies remained under British rule. And it should be recalled that the slave states, including Virginia, had the greatest power and influence in the colonies. One can easily appreciate Dr. Johnson's famous quip that "we hear the loudest yelps for liberty among the drivers of negroes."
Post-Civil War amendments extended the concept person to African-Americans, ending slavery. In theory, at least. After about a decade of relative freedom, a condition akin to slavery was reintroduced by a North-South compact permitting the effective criminalization of black life. A black male standing on a street corner could be arrested for vagrancy, or for attempted rape if accused of looking at a white woman the wrong way. And once imprisoned he had few chances of ever escaping the system of "slavery by another name," the term used by then-Wall Street Journal bureau chief Douglas Blackmon in an arresting study.
This new version of the "peculiar institution" provided much of the basis for the American industrial revolution, with a perfect work force for the steel industry and mining, along with agricultural production in the famous chain gangs: docile, obedient, no strikes, and no need for employers even to sustain their workers, an improvement over slavery. The system lasted in large measure until World War II, when free labor was needed for war production.
The postwar boom offered employment. A black man could get a job in a unionized auto plant, earn a decent salary, buy a house, and maybe send his children to college. That lasted for about 20 years, until the 1970s, when the economy was radically redesigned on newly dominant neoliberal principles, with rapid growth of financialization and the offshoring of production. The black population, now largely superfluous, has been recriminalized.
Until Ronald Reagan's presidency, incarceration in the U.S. was within the spectrum of industrial societies. By now it is far beyond others. It targets primarily black males, increasingly also black women and Hispanics, largely guilty of victimless crimes under the fraudulent "drug wars." Meanwhile, the wealth of African-American families has been virtually obliterated by the latest financial crisis, in no small measure thanks to criminal behavior of financial institutions, with impunity for the perpetrators, now richer than ever.
Looking over the history of African-Americans from the first arrival of slaves almost 500 years ago to the present, they have enjoyed the status of authentic persons for only a few decades. There is a long way to go to realize the promise of Magna Carta.
Sacred Persons and Undone Process
The post-Civil War fourteenth amendment granted the rights of persons to former slaves, though mostly in theory. At the same time, it created a new category of persons with rights: corporations. In fact, almost all the cases brought to the courts under the fourteenth amendment had to do with corporate rights, and by a century ago, they had determined that these collectivist legal fictions, established and sustained by state power, had the full rights of persons of flesh and blood; in fact, far greater rights, thanks to their scale, immortality, and protections of limited liability. Their rights by now far transcend those of mere humans. Under the "free trade agreements," Pacific Rim can, for example, sue El Salvador for seeking to protect the environment; individuals cannot do the same. General Motors can claim national rights in Mexico. There is no need to dwell on what would happen if a Mexican demanded national rights in the United States.
Domestically, recent Supreme Court rulings greatly enhance the already enormous political power of corporations and the super-rich, striking further blows against the tottering relics of functioning political democracy.
Meanwhile Magna Carta is under more direct assault. Recall the Habeas Corpus Act of 1679, which barred "imprisonment beyond the seas," and certainly the far more vicious procedure of imprisonment abroad for the purpose of torture -- what is now more politely called "rendition," as when Tony Blair rendered Libyan dissident Abdel Hakim Belhaj, now a leader of the rebellion, to the mercies of Qaddafi; or when U.S. authorities deported Canadian citizen Maher Arar to his native Syria, for imprisonment and torture, only later conceding that there was never any case against him. And many others, often through Shannon Airport, leading to courageous protests in Ireland.
The concept of due process has been extended under the Obama administration's international assassination campaign in a way that renders this core element of the Charter of Liberties (and the Constitution) null and void. The Justice Department explained that the constitutional guarantee of due process, tracing to Magna Carta, is now satisfied by internal deliberations in the executive branch alone. The constitutional lawyer in the White House agreed. King John might have nodded with satisfaction.