Saturday, April 18, 2015

#108 / Casting A Line

The April 20, 2015 edition of The New Yorker has an article by Jill Lepore, The Rule of History: Magna Carta, the Bill of Rights, and the hold of time. In this extremely worthwhile essay, Lepore makes clear something that I find my legal studies students have not, always, fully fathomed. A list of enumerated rights does not represent a grant from the king, or from the government, or from any "authority" that makes that list: 

Magna Carta has been taken as foundational to the rule of law, chiefly because in it King John promised that he would stop throwing people into dungeons whenever he wished, a provision that lies behind what is now known as due process of law and is understood not as a promise made by a king but as a right possessed by the people.

Our rights are not "granted" by virtue of their placement in any list (like the Bill of Rights) that might acknowledge them, and set them forth. They are, as our Declaration of Independence says, "inalienable," the possession of all living men and women not by any concession given by a human authority, but because such rights have been "endowed" upon all living persons "by their Creator."

This is a salutary reminder, which comes at the start of Lepore's treatment of the Magna Carta and its history. Her article ends with an even more profound and general insight into the reality of our human existence: 

The rule of history is as old as the rule of law. Magna Carta has been sealed and nullified, revised and flouted, elevated and venerated. The past has a hold: writing is the casting of a line over the edge of time. But there are no certainties in history. There are only struggles for justice, and wars interrupted by peace.

So you may write, and I write, and we cast our lines of thought over the edge of time, hoping for a future reader, hoping for a future listener, hoping for justice amidst the wars that threaten, always, to sweep everything we know, that we have created, that we hold dear ...


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