As you get ready for the John Locke Foundation’s June 25 commemoration of Magna Carta, you might appreciate George Will‘s latest syndicated column. Will turns his attention to another event of historical significance.
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Although the “great charter” purported to establish certain rights in “perpetuity,” almost everything in it has been repealed or otherwise superseded.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? …
… 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. …
… 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.