Magna Carta and the Law that Governs Government

By Mark J. Fitzgibbons / June 15, 2015 / American Thinker

It was a time of abuse of power by the state, high taxes, foreign wars against aggressive, violent Muslims, cronyism, and unrest over civil, commercial and religious rights. Certain similarities between 1215 England and 2015 America are, as our British cousins might say, “delicious.”Magna Carta is celebrated on June 15, 800 years after its first rendition was forced upon King John at Runnymede. It was John’s brother Richard the Lionheart who raised taxes to pay for the wars. Richard’s brother-successor King John ruled with arrogance, and never achieved the popularity of his brother.

Shortly after affixing his seal to the “Great Charter,” John asked Pope Innocent III to nullify it for being affirmed under duress. The Pope obliged, and in retrospect we should be grateful. Consent is not legitimate when given under duress. The civil war that prompted the Charter ensued. John soon died of excesses, and was succeeded by his nine-year old son Henry.

Magna Carta subsequently became law under young King Henry III, guided by his regent William Marshal,1st Earl of Pembroke, an eminence grise who served both Richard and John, and after legitimate adoption by the Parliament. It has been the touchstone of the common law these 800 years, yet references, relies on, and reclaims the “ancient” law. Portions of the common law date back to before William the Conqueror and before the “Time of Memory,” as chronicled by Sir Matthew Hale in his History of the Common Law of England from 1713.

Magna Carta is celebrated as a great charter of liberty. Its influence in the founding of America is profound because Magna Carta did something that is essential to liberty, namely, it placed law over government. The Great Charter did not merely say that Englishmen have this or that right. It set forth certain things that government may not do. Its greatness comes from protecting freedom by placing government itself under the rule of law.

Magna Carta, like its American cousin the Constitution, is not a mere compact but is law over government. The English law over government, however, has been in the form of statutes and courts decisions. As Hale writes:

Those that are now extant, are commonly bound together in the old Book of Magna Charta. By those Statutes, great Alterations and Amendments were made in the Common Law; and by those that are now extant, we may reasonably guess, that there were considerable Alterations and Amendments made by those that are not extant, which possibly may be the real, tho’ sudden Means of the great Advance and Alteration of the Laws of England in this King’s Reign, over what they were in the Time of his Predecessors.

Those celebrating Magna Carta may overlook that it is a document of freedom precisely because it places government under the rule of law. Its major contributions to American law over government such as due process and jury trials are fairly well recognized.

Lesser known are its early guarantees of the separation of powers (“No sheriff, constable, coroner or any other of our bailiffs is to hold [“hear”] pleas of our crown.”), restrictions on asset forfeiture (“No sheriff or bailiff of ours or of anyone else is to take anyone’s horses or carts to make carriage, unless he renders the payment customarily due . . .”), freedom of commerce (“All merchants, unless they have been previously and publicly forbidden, are to have safe and secure conduct in leaving and coming to England and in staying and going through England both by land and by water to buy and to sell, without any evil exactions . . .”), and religious liberty (“In the first place we grant to God and confirm by this our present charter for ourselves and our heirs in perpetuity that the English Church is to be free and to have all its rights fully and its liberties entirely.”).

With the Constitution, however, the Founders added something special to the rule of law over government. The Constitution is, by its very terms, supreme law. Chief Justice John Marshall described it in Marbury v. Madison as our “fundamental and paramount law.”

Its nature is not always understood or appreciated. The Constitution did not merely create, form and “constitute” American government. It is law governing what the legislature, the executive, the courts, and even the states may or may not do. Unlike the English political institutions, American institutions may not alter or amend our Constitution without following that paramount law itself. Violations of this paramount law are not mere overreach or lawlessness; they are “illegal.”

The Constitution is not simply the rule of law over government; it truly governs government. The Constitution is intended to protect against arbitrary power through the trampling of rights by whims of the majority and their representatives, or the aggressions of the executive. Deference of the judiciary to government’s unconstitutional acts is neglect of its own legal duty.

Magna Carta and the Constitution are laws of a political nature. It is a fundamental tenet of law that its violations have remedies.

The Declaration of Independence was a remedy to the “lawbreaking” of King George III, and was in part written in the format of an indictment. James Madison describes two remedies under the Constitution: amendments after powers have been usurped (Federalist 49), and replacing elected officials with ones more “faithful” to the Constitution (Federalist 44). “Throwing out the bums” is obviously more peaceful than revolution, giving the Constitution greater stability and sustainability than the common law.

The other remedy has had a checkered history. It is the authority — nay, the duty — of the judiciary to say no to acts of the other two branches when they violate the law that governs government.

A political law over government, Magna Carta’s purposes were nevertheless more profound than mere politics. It was self-described as written for the “salvation” of those whose rights were violated by King John’s lawbreaking. Magna Carta was therefore in the spirit of Paul’s letter to the Galatians: “You, my brothers and sisters, were called to be free.”

Jesuit political scholar Fr. James Schall recently wrote about the erosion of the spirit of Magna Carta:

At the 800th anniversary of the signing of the Magna Carta we cannot but be concerned by how much its spirit of limiting rule and providing freedoms and immunities has been eroded. Often this erosion came by using the very words of its provisions, especially those of “rights,” to increase the power of government over citizens, to limit freedom of religion and speech, and to subject citizens to laws and customs much more regimenting than most people in the feudal order might have imagined possible. Any significant relation between natural and common law has been ignored. A written constitution is no longer a real limit on the will of the state. Much of this “development” has been occasioned by legal and intellectual authorities finding what they wanted to find in documents meant to prevent such arbitrary use of power. In many ways, the Magna Carta stands not as a foundation of free government, but as a witness to what happens when its spirit and provisions are ignored or interpreted out of existence.

From 1215 to 2015, we see the nature of government power to violate rights by violating the rule of law. Long live Magna Carta and the law that governs government.

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