Monday, June 15, 2015

June 15, 1215: King John Signs Magna Carta

Daniel Hannan, a British member of the European Parliament for the Conservative Party, reminds us why Magna Carta is so important today:
Eight hundred years ago. . . on a reedy stretch of riverbank in southern England, the most important bargain in the history of the human race was struck. I realize that’s a big claim, but in this case, only superlatives will do. As Lord Denning, the most celebrated modern British jurist put it, Magna Carta was “the greatest constitutional document of all time, the foundation of the freedom of the individual against the arbitrary authority of the despot.”
It was at Runnymede, on June 15, 1215, that the idea of the law standing above the government first took contractual form. King John accepted that he would no longer get to make the rules up as he went along. From that acceptance flowed, ultimately, all the rights and freedoms that we now take for granted: uncensored newspapers, security of property, equality before the law, habeas corpus, regular elections, sanctity of contract, jury trials.
Magna Carta is Latin for “Great Charter.” It was so named [only] because it was long. Yet, almost immediately, the document began to take on a political significance that justified the adjective in every sense.
Magna Carta instituted a form of conciliar rule that was to develop directly into the Parliament that meets at Westminster today. As the great Victorian historian William Stubbs put it, “the whole constitutional history of England is little more than a commentary on Magna Carta.”
Magna Carta has always been a bigger deal in the U.S.[, however.] As early as 1637, Maryland sought permission to incorporate Magna Carta into its basic law, and the first edition of the Great Charter was published on American soil in 1687 by William Penn, who explained that it was what made Englishmen unique. . . “in England, each man hath a fixed Fundamental Right born with him, as to freedom of his person and property in his estate, which he cannot be deprived of, but either by his consent, or some crime, for which the law has imposed such a penalty or forfeiture.”
In [England], it was thought of, above all, as a guarantor of parliamentary supremacy; in the New World, it was already coming to be seen as something that stood above both Crown and Parliament. . .The concept of “no taxation without representation” was not an abstract principle. It could be found, rather, in Article 12 of the Great Charter: “No scutage or aid is to be levied in our realm except by the common counsel of our realm.” In 1775, Massachusetts duly adopted as its state seal a patriot with a sword in one hand and a copy of Magna Carta in the other.
Magna Carta initiated. . . constitutional government. . . “freedom under law.”
Above the king brooded something more powerful yet—something you couldn’t see or hear or touch or taste but that bound the sovereign as surely as it bound the poorest wretch in the kingdom. That something was what Magna Carta called “the law of the land."
Ilya Shapiro and Josh Blackman recently filed a brief on the Cato Institute’s behalf in King v. Burwell, the upcoming Supreme Court case that will determine whether Obamacare must follow a law that provides recipients of Obamacare subsidies must be enrolled through an exchange “established by a state.” Can the executive unilaterally re-write a congressional act? In discussing their brief, Shapiro and Blackman referred to the 800th anniversary of the signing of the Magna Carta, pointing out that
in disputes between the political branches; the judiciary. . . provides the ultimate safeguard of the separation of powers. Or, as Justice Robert Jackson put it [rebuking] President Truman ’s [1952] unilateral seizure of steel mills: “With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations. Such institutions may be destined to pass away. But it is the duty of the Court to be last, not first, to give them up.”
Shapiro and Blackman recognize an independent judiciary must exist if the executive branch is to be checked. The legislature -- unlike England’s all-powerful parliament -- can’t do it alone.

As George Will explains in the Washington Post:
Magna Carta led to parliamentary supremacy (over the sovereign — the king or queen) but not to effective limits on government. The importance of the document was its assertion that the sovereign’s will could be constrained.
Magna Carta acknowledged no new individual rights. Instead, it insisted, mistakenly, that it could guarantee that certain existing rights would survive “in perpetuity.” British rights exist, however, at the sufferance of Parliament. In America, rights are protected by the government’s constitutional architecture — the separation of powers and by the judicial power to stymie legislative and executive power.
Chief Justice John Marshall, writing for the court [in Marbury v. Madison], held that the law authorizing the court to compel government officials to [deliver the order of a previous administration] exceeded Congress’s enumerated powers and hence was unconstitutional.
Marbury v. Madison. . . made Feb. 24, 1803, an even more important date in the history of limited government, and hence of liberty, than June 15, 1215. . . conservatives must decide: Is majority rule or liberty — these are not synonyms, and the former can menace the latter — America’s fundamental purpose?
Comment: OK, February 24, 1803. That means I was born on the 140th anniversary of a date Will considers even more important than the day King John signed Magna Carta.

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