The Dialectics of Democracy, from the Magna Carta Libertatum Onward

By Carl Davidson

LeftLinks Weekly, May 17, 2025

This week, we are going to take a step back from immediate matters. 'No Kings Day,' for example, is upcoming as the next 50501 national rising on June 14. We should all build for it.

But here, we'll offer an introduction to some larger concepts hovering in its background: 'No one is above the law,' 'the rule of law, ' and 'due process of law' are three of them. In many ways, a good understanding of these snippets of political order is even more critical for No King’s Day and more that will follow.

The roots of these concepts in 'Western Civilization' start with the Magna Carta, or to be precise, Magna Carta Libertatum or 'Great Charter of Freedoms.' The charter originated as an agreement in the 1200s between England’s King John and his Earls, following the latter's armed revolt against him. While its main content reflected the nobility's concerns, some items had an ongoing and broader impact.

The first long-lasting point was that the King was subject to the charter and could not overrule it. Hence, 'no one is above the law.' A second is found in the Fifth Amendment to our Constitution: 'No person shall be deprived of life, liberty, or property, without due process of law.' In cases where this is violated, and people are detained or imprisoned without 'due process,' the concept of 'habeas corpus ' comes into play. The Latin translation is 'deliver the body,' meaning immediately to bring the person or persons before a judge and court, or else set them free.

Fortunately and otherwise, neither the Magna Carta nor English Common Law nor our Constitution is chiseled in stone. From 1215 onward, class struggles and wider democratic campaigns brought many changes. Some of them were positive and some were not. However, the core principles for us, above the concerns of a medieval nobility, remain largely unchanged.

The ink was hardly dry on our Constitution when some of these principles were challenged. The first was the Alien and Sedition Acts of 1798, followed by others. Today, the Trump regime has put them on our front pages, in courts of law, and in legislative chambers.

What were the Alien and Sedition Acts? There were four of them: the Naturalization Act of 1798 '(Repealed, 1802), the Alien Friends Act (Expired, 1800), the Alien Enemies Act (Still in effect), and the Sedition Act of 1798. (Expired,1800). They were legal weapons concocted by John Adams as his response to the rise of his challenger, Thomas Jefferson, whom he saw as being instigated by French agents operating on US soil and nearby waters. The Acts, in their day, were always unpopular and viewed as largely unconstitutional. Luckily, two expired in two years, and another was repealed.

Unfortunately, the Alien Enemies Act is still in effect. It grants the president additional powers to detain and deport non-citizens during times of war, invasion, or imminent danger to national security. So far, the courts have rejected Trump's distortions and held him to the laws' strict standards: we are not at war with any nation, no nation or its agents are invading us, and there is no imminent danger to our national security. Moreover, the statute legally needs a declaration of war by Congress to make it operative.

The Trump regime has also turned to the Insurrection Act of 1807, which, despite its age, remains in effect. It allows the president to declare a national emergency related to an internal insurrection, whereby he can federalize the National Guard and deploy it to suppress any uprisings in the affected states. He can even deploy U.S. Army troops to support them. However, either the state's governor must request such measures, or the governor must be disabled from acting due to the events.

Trump had wanted to do this during the George Floyd protests, but no governor agreed to his proposal. He asked his generals to do it in D.C., but they talked him out of it. As the 50501 and other insurgencies grow in strength, he may try it again.

But the Posse Comitatus Act of 1878, still in effect, may also stand in his way. The act prohibits the use of federal troops in U.S. politics or events in any state without a prior enabling act by Congress. Posse Comitatus is Latin for 'the power of the county,' and in our case, it means county sheriffs are legally enabled to raise a military force from among their residents to deal with any local defiance of the law. As we might gather from its date, 1878, its original intent was to guarantee the South against any further intervention by the federal government that would oppose their efforts at 'redemption,' or stripping any civil or social rights away from African Americans and their local allies.

In later situations, the act prevented the federal military from putting down labor strikes or antiwar and civil rights insurgencies. Alternately, President Eisenhower used an exception to the act to deploy troops to enforce school desegregation in Arkansas.

Trump has one last option: the Patriot Act of 2001, with its considerable provisions that compromise civil liberties. Since it finally expired in 2020, he would have to have it restored. Some of its data-gathering provisions, however, were incorporated into the Freedom Act of 2015 and are still in effect. These allow secret spying against anyone, including U.S. citizens.

All of these legal acts and the resistance to them reflect an ongoing battle over two versions of democracy in our history. One is 'Madisonian Democracy,' which is a misnomer, since James Madison, our 5th President, and author of much of our Constitution, hated democracy. He was a republican and only attached the Bill of Rights to our Constitution under duress. If he didn't, the advocates of the democratic rights in the bill threatened to sink the whole project. Madisonian democracy, thus, is rule from above with a restricted franchise, where reforms might be made, with an eyedropper, to the masses below demanding them.

Abolition Democracy, alternately, is democracy from below, deployed against the ruling classes by the ruled classes. W.E.B. DuBois coined the term to describe its high point in the post-Civil War Reconstruction governments of the Freed people and their Scalawag allies. But we can use it more widely to mean all efforts to widen democracy from below, from the resistance of the first slaves and Native Peoples to the 2nd Reconstruction declared by Rev. Martin Luther King and others in the 1960s and 1970s, to the new 50501 waves of protests today.

The electoral arm of the various risings of the last 25 years might best be described as abolition democracy's efforts to bring a 3rd Reconstruction to governing power, where it can battle its adversaries on the terrain of state power. To do so effectively, we will need to internalize all the lessons of the past, reaching back to Magna Carta Libertatum. So dig out your history books, and recruit some left lawyers to lend a hand. Gramsci gave us the task of becoming the organic intellectuals of all the subaltern classes and all the oppressed, and becoming the permanent persuaders in making more of them. Put our minds to work.