Com­plet­ing what Magna Carta started

The Washington Post Sunday - - SUNDAY OPINION - GE­ORGE F. WILL georgewill@wash­

Amer­i­cans should light 800 can­dles for the birth­day of the doc­u­ment that be­gan paving the me­an­der­ing path to limited gov­ern­ment. Magna Carta laid down the law about “fish weirs” on English rivers, “as­sizes of dar­rein pre­sent­ment,” peo­ple be­ing “dis­trained to make bridges,” and other “lib­er­ties . . . to hold in our realm of Eng­land in per­pe­tu­ity.” But what King John ac­cepted at Run­nymede meadow on June 15, 1215, mat­ters to Amer­i­cans be­cause of some­thing that hap­pened 588 years later in the living room of Stelle’s Ho­tel in Wash­ing­ton, where the Li­brary of Congress now sits.

Although the “great char­ter” pur­ported to es­tab­lish cer­tain rights in “per­pe­tu­ity,” al­most ev­ery­thing in it has been re­pealed or oth­er­wise su­per­seded. 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.

In Amer­ica, where “we the peo­ple” are sovereign and ma­jor­ity rule is cel­e­brated, con­strain­ing the sovereign is fre­quently, but in­cor­rectly, con­sid­ered morally am­bigu­ous, even dis­rep­utable. Hence the heated de­bate among con­ser­va­tives about the role of courts in a democ­racy. The ar­gu­ment is about the sup­posed “coun­ter­ma­jori­tar­ian dilemma” when courts in­val­i­date laws passed by elected rep­re­sen­ta­tives: Does the demo­cratic ethic re­quire vast ju­di­cial def­er­ence to leg­isla­tive acts?

The first me­mo­rial at Run­nymede was built in 1957 by, ap­pro­pri­ately, the Amer­i­can Bar As­so­ci­a­tion. It is what Amer­ica did with what Magna Carta started that sub­stan­tially ad­vanced the cause of limited gov­ern­ment.

The rule of law— as op­posed to rule by the un­tram­meled will of the strong — re­quires ef­fec­tive checks on the strong. In a democ­racy, the strong­est force is the ma­jor­ity, whose power will be un­lim­ited un­less an in­de­pen­dent ju­di­ciary en­forces writ­ten re­straints, such as those stip­u­lated in the Con­sti­tu­tion. It is “the supreme law” be­cause it is su­pe­rior to what ma­jori­ties pro­duce in statutes.

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.

Early in 1801, as John Adams’s pres­i­dency was end­ing, a lame-duck Congress con­trolled by his Fed­er­al­ists cre­ated many ju­di­cial po­si­tions to be filled by him be­fore Thomas Jef­fer­son took of­fice. In the rush, the “mid­night com­mis­sion” for Wil­liam Mar­bury did not get de­liv­ered be­fore Jef­fer­son’s in­au­gu­ra­tion. The new pres­i­dent re­fused to have it de­liv­ered, so Mar­bury sued, ask­ing the Supreme Court to com­pel Jef­fer­son’s sec­re­tary of state, James Madi­son, to de­liver it.

Chief Jus­tice John Mar­shall, writ­ing for the court, held that the law au­tho­riz­ing the court to com­pel gov­ern­ment of­fi­cials to make such de­liv­er­ies ex­ceeded Congress’s enu­mer­ated pow­ers and hence was un­con­sti­tu­tional. Jef­fer­son, who de­tested his dis­tant cousin Mar­shall, was surely less pleased by the re­sult than he was dis­mayed by the much more im­por­tant means by which Mar­shall pro­duced it. Mar­shall had ac­com­plished the new gov­ern­ment’s first ex­er­cise of ju­di­cial re­view — the power to de­clare a con­gres­sional act null and void.

Although the Con­sti­tu­tion does not men­tion ju­di­cial re­view, the Framers ex­plic­itly an­tic­i­pated the ex­er­cise of this power. Some pro­gres­sives and pop­ulist con­ser­va­tives dis­pute the le­git­i­macy of ju­di­cial re­view. They say fidelity to the Framers re­quires vast def­er­ence to elected leg­is­la­tors be­cause Mar­shall in­vented ju­di­cial re­view ex ni­hilo. Randy Bar­nett of Ge­orge­town Uni­ver­sity’s law school sup­plies re­fut­ing ev­i­dence:

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.”

With the com­po­si­tion of the Supreme Court likely to change sub­stan­tially dur­ing the next pres­i­dent’s ten­ure, con­ser­va­tives must de­cide: Is ma­jor­ity rule or lib­erty— th­ese are not syn­onyms, and the for­mer can men­ace the lat­ter— Amer­ica’s fun­da­men­tal pur­pose?

Be­cause one ail­ing jus­tice was con­fined to Stelle’s Ho­tel, it was there that Mar­shall read aloud Mar­bury v. Madi­son. This made Feb. 24, 1803, an even more im­por­tant date in the his­tory of limited gov­ern­ment, and hence of lib­erty, than June 15, 1215.


A close-up of the 1297Magna Carta at the Na­tional Ar­chives in 2008.

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