The chief goal of the Magna Carta club is to race Buchanan’s “veil of ignorance” view of constitutions against my “lock-in political advantage” view.  I don’t deny that Buchanan’s view has some real-world relevance, but I doubt it’s significant.  Don’t forget: For Buchanan, unlike say Rawls, the veil of ignorance isn’t a hypothetical construct.  It’s supposed to describe our actual situation when we engage in constitutional politics.

Now on to the Magna Carta.

Preamble.  The opening statement comes close to invoking Buchanan’s unanimity rule.  The Magna Carta allegedly benefits the king, his ancestors (?!), his heirs, God, the Church, and the whole realm:

Know that, having regard to God and for the salvation of our
soul, and those of all our ancestors and heirs, and unto the honor of God
and the advancement of his holy Church and for the rectifying of our
realm, we have granted as underwritten…

Score one for Buchanan.

Clause 1.  The first clause primarily confirms the rights of the Church, including the Church’s (and ultimately the Pope’s) control over ecclesiastical appointments. 

In my notes on constitutions, I look at constitutional provisions and ask, “Cui bono ex ante?”  Who reasonably expects to gain?  On Buchanan’s view, the answer should be, “everyone” or “almost everyone.”  But the only clear beneficiary here is the Church, and especially the Pope.  You might argue that some other parties gain, but “everyone” or “almost everyone”?

Admittedly, Clause 1 ends on a more Buchanan-friendly note, granting…

…to all freemen of our kingdom, for us and our heirs forever,
all the underwritten liberties, to be had and held by them and their
heirs, of us and our heirs forever.

Since it doesn’t state what these “liberties” are, though, I’ll suspend judgment for now.

Clause 2. This limits death taxes on the heirs of earls, barons, and knights.  Heirs of earls, barons, and knights clearly gain.  If almost everyone were an earl, baron, or knight, Buchanan would have a point…

Clause 3. This forbids death taxes on underage heirs of earls, barons, and knights.  Buchanan could argue that this is implicit insurance.  No one knows ex ante whether they will die with an underage heir, and everyone understands that underage heirs need a little extra help.  Don’t forget, though, this implicit insurance is specifically tailored to benefit earls, barons, and knights.

Clauses 4-5. This clause tries to protect underage heirs from corrupt guardians.  If it weren’t limited to earls, barons, and knights, I can actually see Buchanan’s veil of ignorance story here.  If you could protect your underage heirs from corrupt guardians by giving up your chance to be a corrupt guardian, who wouldn’t?  Seems like a fair trade if both situations occur randomly.  However, secondary sources indicate that there was a foreseeable beneficiary of corrupt guardianship: the king himself, who was usually complicit.

Clause 6. This clause says that heirs shall be married without “disparagement,” which at the time meant to “match unequally; to degrade or dishonor by marrying one of inferior rank.”  The point is to prevent the king from rewarding his lowly friends with favorable marriages.  As this source explains, “Often the King would assent to marriages, but
would often demand a high sum from the suitor or the ward in order to
let the marriage proceed.”

Clauses 7-8.  These clauses protects widows’ inheritances, and right not to remarry.  (If she wants to remarry, she still needs the permission of higher-ups).  Again, the background is that the king was usurping inheritances, and forcing unfavorable marriages on widows.  The point is to help widows and their families at the expense of the king.

Clause 9.  This sets out complicated limitations on debt-collection.   The background seems to be that the king was using minor debts as a pretext for major asset seizures.

Clause 10.  If you die in debt to the Jews, and your heir is underage, he doesn’t have to repay the interest.  The same holds “if the debt fall into
our [the king’s] hands.”  The intention of this provision is apparently to take from Jews and give to Gentiles.  Intro econ suggests, however, that the incidence will ultimately fall largely or entirely on borrowers in the form of higher interest rates.  Buchanan might call it insurance, but there’s no reason why voluntary debt contracts couldn’t adopt this “interest-cancellation clause” in exchange for higher interest rates.  So ultimately this is a provision that rational actors would oppose with near-unanimity!

Overall, it’s not hard to see the appeal of a Buchanan-esque reading of the Magna Carta.  The preamble doesn’t invoke “the general welfare,” but it comes close.  But once you look into the historical background, the Magna Carta is no different from regular legislation.   Each clause is designed to redistribute power and resources from some identifiable parties to others.  Of course, I often agree with the redistribution of power and resources from the king to e.g. widows.  Remember, however, that Buchanan doesn’t like identifying “good guys” and “bad guys.”  So if he wanted to defend the first ten clauses of the Magna Carta, what could he really say?

P.S. Stay tuned for clauses 11-20, a week from today.