Sunday, June 14, 2015

Eight Centuries And Counting: Thoughts on Magna Carta

This Monday, June 15, marks the 800th anniversary of the signing, by England's King John, of the Magna Carta.  For most of us, the usual method of celebrating this anniversary consists of waking up, having breakfast, spending the day at work, coming home, cooking and eating dinner, watching a bit of television, and going to bed. Well, at least, that's my routine. Perhaps you are planning something more in keeping with the momentous occasion.

This Nation won its independence from Great Britain in the Revolutionary War. It would be a gross error of history, however, to assert that, by our Revolution, we not only severed our political ties with England, but that we repudiated every part and parcel of the history and tradition that we received as colonies of the Crown, and as descendants of the colonists. Remember that colonists chiefly complained that they were being subjected to taxation by Parliament without being permitted representatives in Parliament. Had Crown and Parliament responded to American colonists' pleas, the situation might have turned out rather differently. Instead, as Jefferson remonstrated in the Declaration of Independence:
Our repeated Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people. 
Nor have We been wanting in attentions to our Brittish brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which, would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.
Perhaps independence was inevitable. The Empire of Great Britain, upon which, at its height, "the sun never set," has contracted substantially. Yet, it would be unseemly to accuse Jefferson of alleging, disingenuously, that it was the failure of Crown and Parliament to respond to our complaints that forced the independence card.

Of course, some, including Thomas Paine, had concluded, by the time we declared independence from Britain, that the arrangement between homeland and colonies could not continue. In Common Sense, Paine put the case plainly:  "The authority of Great Britain over this continent, is a form of government, which sooner or later must have an end...." In Paine's geopolitical economy, America was destined to be a free trading port, and would best keep to that status if it dissolved bounds -- other than trade -- with all the kingdoms of Europe. Paine continued: "Europe is too thickly planted with Kingdoms to be long at peace, and whenever a war breaks out between England and any foreign power, the trade of America goes to ruin, BECAUSE OF HER CONNECTION WITH BRITAIN. "

Yet, with the exception of Louisiana, every State in the Union undertook a stunning act ratifying the bonds of our English connection upon admission to the Union. Each of them, and the original 13 upon independence, expressly adopted as the law the English Common Law. In almost every case, that adoption was accomplished by enacting a law, called a "Reception Statute," by which the common law of England, as it existed on a selected date (our independence, for example), was made the rule of law for the State until altered or amended by the legislature.

So, beyond our once intense fancy for Diana, the Princess of Wales, our enduring connection to England, is found in law. And, in English law, the Magna Carta, or "Great Charter" is, as it were, the great-grand daddy of charters establishing the rights of those that do not wear the crown as against the power of those that do. Down in the weeds, the details of the Magna Carta, are many provisions not terribly important to our current circumstances. Its overarching principles -- due process, rule of law, and the like -- are key components of our constitutional order. So Magna Carta is worth remembering, worth celebrating.

In fact, it is notable that Congress (at least temporarily) just rejected aspects of fast track trade authorization for Barack Obama on the eve of Magna Carta's anniversary. As with King John's habits of aggrandizing power to the Crown, Barack Obama's term in office has been marked by executive overreach and abuse, the most recent and stunning example of which was the demand that Congress vote on legislation that included a trade deal sealed from public knowledge, so that our elected representatives could not even answer our demands for information about the proposed trade deal.

As Barack has done with us, so King John had grated greatly on the English landed barons and princes. His habit of imposing confiscatory taxes and taking property and other wealth without asking, and without compensation, and without trial, would surely grate on us. (We recoil, after all, at two government processes that are hard to distinguish from King John's greedy grasping. Those two processes are eminent domain, whereby private property is taken by government for public purposes (although these days, "public purposes" often means "taken to give to a property development company that will turn the property into a facility that will generate a high tax flow") and civil asset forfeiture, a form of legalized government theft in which property and money are taken without trial, based on the possibility that the property is used in, or the product of, criminal conduct.)

For my Christian friends, there are biblical injunctions to bear in mind here:
“You must not move your neighbor’s boundary marker, established at the start in the inheritance you will receive in the land the Lord your God is giving you to possess."
Deutonomy 19:14
‘The one who moves his neighbor’s boundary marker is cursed.’ And all the people will say, ‘Amen!’
Deuteronomy 27:17
"Don’t move an ancient boundary marker that your fathers set up."
Proverbs 22:28
The "ancient landmarks" rules of the Old Testament served to insure that the rights of private property were respected by God's people. The principle of observing the ancient landmarks, however, serve larger purposes too.

Just as one should not remove the property boundaries, and thereby steal a neighbor's land, the biblical command against theft serves to protect the ownership of personal property. The command to do no murder protects the individual bodily integrity of each person. So while the "ancient landmarks" literal purpose was to prevent land fraud, but it has a subtextual injunction to recognize, respect, and abide by those things that fall within the notion of "the ancient landmarks."

Here in the USA, we are a republic of republics. That is, we are a single, representative, general government, created by 50 separate representative governments.

We have, during all our collective history, borne a rather consistent distrust of concentrated power. So the governments -- State and federal -- that we have set up via State Constitutions and the US Constitution are ones of separated powers. We have -- at both State and federal levels -- divided the essential powers of government into kinds, that is, legislative powers, executive powers, and judicial powers; we have assigned all responsibility for the powers of each kind to separated entities, either the State Legislature, the Governor, and the State Courts, or the Congress, the President, the Supreme Court.

George Will's commentary does a good job of explaining the role of Magna Carta, the "Great Charter," as one of our "ancient landmarks." It is worth the read, the history told in it worth recalling, and the principles of separated powers and distrust of concentrated power just as vital today to liberty as ever they were. But Will uses the opportunity to lay out his claim that a decision of the US Supreme Court -- in a 200 year old case called Marbury v. Madison -- perfected the work begun in Magna Carta by securing the "rights of minorities" against majoritarian rule.

Will's incomprehensible claim arises from his decision to celebrate the arrogation to itself by the Supreme Court of the power of judicial review, and by that power, to declare laws enacted by the Congress unconstitutional. Will apparently fails to comprehend that a power he finds worth celebrating -- the power of the Supreme Court to state with final authority against contrary views of the Congress or of the President -- is as dangerous to liberty as any power can be.

To clarify, Will correctly notes that it was only by subsequent interpretations of the Constitution, not its direct language, that the Judiciary came to possess ultimate authority to construe the meaning of the Constitution. That candor is appreciated. But what I question, what I do not appreciate, is the arrogation of that power by the Court, or the suspect history that is offered to support it. Will relies on Randy Burnett, a professor at Georgetown University Law School, for this selective history:
At the 1787 Constitutional Convention, Madison acknowledged that states would “accomplish their injurious objects” but they could be “set aside by the National Tribunals.” A law violating any constitution “would be considered by the Judges as null & void.” In Virginia’s ratification convention, Marshall said that if the government “were to make a law not warranted by any of the [congressional] powers enumerated, it would be considered by the judges as an infringement of the Constitution which they are to guard. . . . They would declare it void.”
There is, however, something of a problem with both Randy Barnett's reflections on discussions had about the judiciary in the Constitutional Convention and Will's reliance on them.

The problem is that, the question is never, in the first instance, what might have been discussed, thought, or said by the delegates to the Convention. Asking such questions, seeking such answers, derails the discussion from the key question: What does the Constitution provide regarding the power of judicial review?

Article III of the Constitution is a quick read.

You will see that nothing in the Article proposed by the Convention, propounded by the Congress to the States, or ratified by the States expressly grants a power of judicial review of the constitutionality of federal or State legislation. The language does not appear in the Article.

There are rules for reading and construing legal documents. These reflect ancient and seasoned considerations about how we come to an agreement on some question, how we embody that agreement in a written document, and how we address subsequent disputes over the document or over disputes where the document provides guidance in resolution of those dispute. For example, one such rule is that where the writers of a document use a particular formula of language and make some rule by doing so, the omission of such a parallel provision as to other rules is evidence that the document's authors intended to omit that parallel provision. Again, let me clarify.

Suppose that the delegates to the Constitutional Convention concluded that only the President should appoint judges to the Courts created under Article III of the Constitution, and that the President's nomination of those judges was subject to the approval of the Senate, but not the House of Representatives. In fact, that is, precisely what the delegates agreed upon.

So we have Presidential nominations subject to the advice and consent of the Senate. If, tomorrow, the House of Representatives decided that its authority to enact laws on taxes, postal services, interstate commerce, etc., was ineffective without a voice in selecting judges that might, after all, eventually exercise judicial authority to strike down the laws they thought necessary and proper to the execution of their authority, why not conclude that the Necessary and Proper Clause gave them an equal voice in the selection and approval of judges?

The Constitution's language clearly and directly limits involvement in the process to appointment by the President subject to the advice and consent of the Senate. That other approaches were discussed in the Convention are interesting. They are, perhaps, even relevant and informative. But the Constitution omits all those other approaches and adopts just the one. The silence of the Constitution on the House's role in the process is not countenance thereof.

Well, that rule of construction of written documents tells us how to treat such a claim by the House. Applying that rule, we should reject the claim of power by the House. The express written rule providing power to the President and the Senate as to judicial appointments proves that those that wrote the Constitution, those that propounded it to the States, and those that ratified it, knew how to write a provision of law giving power to make judicial appointments. Because they did, and because they did not use that skill to create a role for the House in the Constitution, that rule requires the conclusion that the Constitution does not give the House such a power.

On top of that rule, there is another important and overarching consideration: our federal government is different than our State governments. When States come into existence, they possess all the powers and authorities of any independent sovereign. From that vast residual body of powers, the States have donated a set of limited, expressly stated, powers for the federal government.

Taken together, these rules help us to understand that our Constitution does not re-write itself according to the whims of interest groups, according to the preferences of political factions. It is fixed and determinate in meaning. That it is so, in part, is because we are heirs to the meaning and consequences of Magna Carta.

So for Will and Barnette, the problem is that there is an express provision of the Constitution on the Judiciary.

What Barnett leaves unstated is that the Constitutional Convention, on three separate occasions, considered, discussed, and rejected a proposal to include representatives of the Judiciary in a commission of review that would pass on the constitutionality of federal legislation before it became effective. So, while there were, certainly, delegates that contemplated such a role for the judiciary, the Convention taken as a whole declined to extend such a role by express terms in the Constitution. In other words, this arrogation of judicial power is not quite the same issue as if the House decided to assume a role in the nomination and confirmation of judicial nominees, because the Convention expressly considered, and expressly rejected, provisions for the Constitution affording to the Judiciary such a role in reviewing the legislation enacted by Congress.

If such a power was extended to the federal judiciary, that power must be derived from something other than an express provision of that power in the Constitution. Perhaps that power is an inherent affect of the "judicial power" ceded to the federal government by the States. Perhaps. Indeed, the argument is made by others that such power was understood to be included within the English concept of judicial power, and therefore those delegates were simply expressing a view of judicial power that was already acceptable to Englishmen. The only argument to make sensibly against such an approach is that, in fact, agreeing to adopt that aspect of English judicial power is directly contrary to the decision of the Convention on three separate occasions to grant the Judiciary such a role.

So, here we are, on the eve of the eight hundredth anniversary of Magna Carta, by which, in certain respects, the divine right of King John was brought to its knees before the demands of the English barons, and by which, rights of due process came to be recognized as important, integral rights of Englishmen. Yet we face now, as the Barons and the people of England did then, an extending, grasping and self-aggrandizing power, there the monarch, here the Judiciary.

For us the question remains, who will come to Runnymede?