By George F. Will
The Washington Post
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.
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Although the "great charter" purported to establish certain rights in "perpetuity," almost everything in it has been repealed or otherwise superseded.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' 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' 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 and 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.
Reach George Will at email@example.com.