Are we in a constitutional crisis? More and more pundits and legal scholars think so, and for good reason. Trump repeatedly denounces judges who displease him, calling for their impeachment, and his administration prefers to act without regard for Congress. While many have shown how Trump’s actions defy the Constitution, to get a sense of the magnitude of Trump’s departures from America’s founding values, we should go back to the document that started it all back in 1215: Magna Carta.
Before anyone says, who cares about a law that’s over 800 years old and from another country? The answer is that Magna Carta is not only the foundation of our legal system (more on that below), it’s also frequently cited by judges right here, right now. In 2024, Magna Carta was cited in judicial decisions over thirty times. We are only four months into 2025, and it’s been cited ten times.
The reliance on Magna Carta is bipartisan. The liberal leaning Ninth Circuit Court of Appeals reversed a circuit court’s decision denying prisoners the right to join together in lawsuits, noting that the right for all citizens to have access to the courts “can be traced back to the Magna Carta.” Conversely, in a case about excessive fines, the conservative Eleventh Circuit quotes a distinguished legal historian’s observation that “[v]ery likely there was no clause in Magna Carta more grateful to the mass of the people than that about amercements [fines].”
So what is Magna Carta? How did it come to be? And why is it so important? To answer these questions, we need to rehash a little history.
King John may not have been the childish, thumb-sucking tyrant portrayed in the Disney classic Robin Hood, but by 1215, everyone knew he was a vindictive creep with a talent for arrogance and betrayal. He murdered his rivals, including his nephew, Arthur. To fund his wars, he nearly taxed England into oblivion (the origin of the Robin Hood legends), and he regularly used “lawfare” to extort yet more money from his subjects. Finally, John gambled on a military expedition to regain all the territory on the continent the French king had retaken, and he lost. Badly. So when John limped back to England, he faced a hostile aristocracy and hatred from his subjects.
The obvious solution to a king who practiced arbitrary justice, extortion, sexual corruption, and outright cruelty, a king who had not only alienated all his subjects but lost half of his territories, would be to depose him and put someone else in his place. Anybody else.
But that is not the path the barons chose. Instead, their response showed that something in addition to self-interest was at stake. Instead of killing John and replacing him with someone more attentive to their interests, the barons decided they would keep John on the throne, but they would curb his excesses by re-stating and extending the traditional limits on monarchic authority.
When John read their demands, he said the barons were demanding “a new order in things touching the whole state of the commonwealth.” He scornfully asked why the barons didn’t ask for the whole kingdom, that he would never grant such liberties, because they wanted to turn the king into a slave. John, however, had no choice.
The scene has become so familiar, and so often depicted (a google image search for “John signing Magna Carta” yields a near infinite number of hits) that it’s easy to forget how radical a shift it represented. The thirteenth century was not a squeamish age that shied away from violence. John killed many people who defied him. Torture was commonplace. Political assassination was hardly unknown (John’s father, Henry II, famously encouraged the murder of Thomas Becket in 1170). So there really was nothing preventing the barons from dispatching John with a sword, especially since John had lost all support.
Instead, they insisted on a signed document to keep John in line. Granted, a document backed up by an army, but a signed document nonetheless.
Magna Carta could be read as an exhaustive list of the specific remedies for all of John’s bad acts, and the drafters took the opportunity to mandate reforms not necessarily tied to John’s abuses, such as fixing a single measure for wine, ale, and corn. At least one provision is hard to explain: for some reason the barons wanted all “fish-weirs” removed from England’s rivers, restricting them to the coast.
But other provisions show that John was not wrong when he protested that the document represented a new vision of government, one in which the monarch cannot act on his own. Item 12 mandates that no taxes can be imposed “unless by common counsel.” Meaning, no taxation without the consent of the governed.
Item 30 states that the king could not arbitrarily seize anyone’s property. Most importantly, Magna Carta guaranteed trial by a jury of peers, equal justice for all, and no selling, refusing, or delaying justice (items 21, 39, and 40). Magna Carta also established a group of 25 peers who would monitor John’s adherence to the agreement and resolve any disputes.
Even though John immediately tried to wiggle out from the agreement, he failed, and Magna Carta quickly became known as England’s bill of rights. Equally importantly, Magna Carta formed the basis for the English Revolution and then, the American Revolution. For example, in 1774, William Henry Drayton wrote a thundering pamphlet, A Letter from a Freeman, addressed to the First Continental Congress on how the Crown had deprived the colonies of the rights guaranteed “by Magna Carta and the Common Law .”
The Constitution’s limits on executive power, the Fifth Amendment’s guarantee that nobody should “be deprived of life, liberty, or property, without due process of law,” all begin with Magna Carta.
All of which is to say that it’s impossible to exaggerate the magnitude of the Trump administration’s war against the norms guiding this nation from the start.
In place of due process, the Trumpers believe that they can deport people they don’t like for any reason, or no reason at all. That is what happened with the Venezuelans who were rounded up and sent to a maximum-security prison in El Salvador. Trump said they were criminals, but there has been no evidence, no trial. As for judicial review, Trump’s “border czar,” Tom Homan, says “I don’t care the what judges think.” Attorney-General Pam Bondi similarly asserted that judges “have no right” to ask questions about deportations.
The judges who rule against Trump or his policies are, in Trump’s words, “radical leftist lunatics,” and they should be impeached. House Speaker Mike Johnson has even floated the possibility of defunding federal courts because they stand in Trump’s way. And not just the courts. Trump issued a series of executive orders kneecapping firms which hired lawyers who prosecuted him.
If there is one principle that carries through the ages, it’s that the chief executive, president or monarch, cannot do whatever they like, that they are bound by the laws of the land.
Not according to Trump and his administration. Instead, Vance and others believe that the president can defy court orders they do not like. “Judges,’ Vance posted on X, “aren’t allowed to control the executive branch’s legitimate power.”
Instead, our duty is not to question but to obey. The President desires Greenland, and so, Vance says, “we cannot ignore the president’s desires.” It’s as if Vance is following Antony’s line in Shakespeare’s Julius Caesar: “When Caesar says, ‘Do this,’ it is performed.”
But mindless obedience to the President’s desires is exactly what Magna Carta, and later, the Constitution, were supposed to prevent. The barons in thirteenth century England put a collar on King John and forced him to respect the limits on his power. It’s not clear if the courts and the political system today can do the same for Donald Trump.
Peter C. Herman is a professor of English literature at San Diego State University. He has published books on Shakespeare, Milton and the literature of terrorism, and essays in Salon, Newsweek, Inside Higher Ed, and Times of San Diego. His latest book is “Early Modern Others: Resisting Bias in Renaissance Literature” (Routledge).
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