The Legal Value of the Magna Carta: Recognition of a Higher Law

The Magna Carta from 1215 is an early English form of encoded social and legal rules. (Photo credit: Wikipedia)

(2) Its Legal Value. The value of the Charter [Magna Carta] as a whole, however, is more than a mere sum of the values of its separate parts. Its great importance lay, not in the exact terms of any or all of its provisions, but in the fact that it enunciated a definite body of law, claiming to be above the King’s will and admitted as such by John. As our supreme authorities say of Magna Carta: “For in brief it means this, that the King is, and shall be below the law.”4 The King, by granting the Charter, admitted that he was not an absolute ruler—that he had a master in the laws he had often violated, but which he now swore to obey. Magna Carta has thus been truly said to enunciate “the reign of law” or “rule of law” in the phrase made famous by Professor Dicey.1

 

Misc (Magna Carta), Magna Carta: A Commentary on the Great Charter of King John, with an Historical Introduction, by William Sharp McKechnie (Glasgow: Maclehose, 1914). Chapter: PART III.: MAGNA CARTA: ITS FORM AND CONTENTS.

 

Accessed from http://oll.libertyfund.org/title/338/48719 on 2013-12-12

 

Missouri Declare Your Grievances

English: The Bill of Rights, the first ten amendments to the United States Constitution Česky: Originál Listiny práv, prvních deseti dodatků k Ústavě Spojených států amerických Deutsch: Die Bill of Rights genannten ersten zehn Zusatzartikel zur US-amerikanischen Verfassung, die den Bürgern bestimmte Grundrechte garantieren Español: La Carta de Derechos de los Estados Unidos, el término por el que se conocen las diez primeras enmiendas de la Constitución de los Estados Unidos de América (Photo credit: Wikipedia)

On Foxnews.com, there is a piece entitled “Missouri poised to enact measure nullifying federal gun laws.”  The piece asserts that, “A recent Associated Press analysis found that about four-fifths of the states have enacted local laws that directly reject or ignore federal laws on gun control, marijuana use, health insurance requirements and identification standards for driver’s licenses.”  It also asserts that one of the boldest of these is Missouri’s vetoed legislation that expands gun rights and makes federal gun regulation unenforceable.  The piece concludes that Governor Nixon’s veto of the legislation will almost certainly be overridden despite a consensus that the law will be declared unconstitutional.

So why is it that, even though a vast majority of law makers believe the law is unconstitutional, two-thirds of both the Missouri House and the Missouri Senate will vote to override?  The article quotes several stating that it would be political suicide to vote against pro-gun legislation in Missouri.  So is this a useless act?  Is this an act all for show?  That depends on the courage and character of our state elected officials.  But they must have the fortitude to stand on principle.

The most interesting quote from the piece is a quote from state Representative Jay Barnes, the only Republican to vote against the bill.  According to Foxnews.com:  “Our Constitution is not a Chinese buffet, which we like and do not like,” the Jefferson City attorney told the AP. “The First Amendment is part of the Constitution that we must uphold. … (And) the supremacy clause means that states cannot criminalize the activities of agents of the federal government.”  It appears that it is the federal government that is treating the Constitution as a Chinese buffet, selecting which portions of the Constitution it will respect and which it won’t.  One might ask Rep. Barnes how he might respond to a federal act authorizing federal agents to enter into the homes of all Jefferson City attorneys without probable cause and without a warrant.  Last time I checked, the Constitution only granted supremacy to federal acts that are made in pursuance of the Constitution.  Last time I checked, I believe the Second Amendment recognized the right of all citizens to bear arms without limitation.  If a federal act violates the Constitution, it is not made in pursuance thereof, and it is the duty of the states to recognize the violation and reject the act.

There is sovereignty in state governments.  The states were recognized in the Declaration of Independence as on an equal status as the “state” of Great Britain.  The states are the parties to the U.S. Constitution.  The federal government was created by the states.  The federal government is the servant of the states.  One might also ask Rep. Barnes how he would react to the federal servant disbanding the fifty states and reserving all residual authority to itself.

Will the federal servant court system declare the acts of Missouri defending the Second Amendment unconstitutional?  Likely.  They have power and authority to protect.  But this is a servant that has run amuck.  They can justify any usurpation of authority because there is no authority to challenge them.  The masters have allowed the servant to get carried away.  There is a great old parable about this kind of conduct.

⁹ And he began to tell the people this parable: “A man planted a vineyard and let it out to tenants and went into another country for a long while. ¹⁰ When the time came, he sent a servant to the tenants, so that they would give him some of the fruit of the vineyard. But the tenants beat him and sent him away empty-handed. ¹¹ And he sent another servant. But they also beat and treated him shamefully, and sent him away empty-handed. ¹² And he sent yet a third. This one also they wounded and cast out. ¹³ Then the owner of the vineyard said, ‘What shall I do? I will send my beloved son; perhaps they will respect him.’ ¹⁴ But when the tenants saw him, they said to themselves, ‘This is the heir. Let us kill him, so that the inheritance may be ours.’ ¹⁵ And they threw him out of the vineyard and killed him. What then will the owner of the vineyard do to them? ¹⁶ He will come and destroy those tenants and give the vineyard to others.  Luke 20.

The only way for the states to take back their authority is to exercise it.

Will the federal servant court system declare the acts of Missouri defending the Second Amendment unconstitutional?  Likely.  But the federal servant system should take care.  If four-fifths of the states are undertaking such actions, there is political sentiment growing against the tenants of the vineyard.  These types of events occurred more than two hundred twenty-five years ago.  The situation was recorded for all to remember.  “In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: 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.”  What did the free people do in response?  The answer is recorded in the same legal pleading.  “When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another . . . .”  Missouri’s actions may be rejected.  They may be declared unconstitutional.  But they are part of the course of history, declaring in petition form for posterity the grievances of the states.

 

The Veto of HB 436: A Government of Men, Not of Law

Constitution of the United States of America (Photo credit: The U.S. National Archives)

On July 5, 2013, the day after Independence Day—a day John Adams declared would be celebrated with guns and fireworks, Governor Nixon vetoed Senate Committee Substitute for House Committee Substitute for House Bill No. 436 (HB 436), the Second Amendment Preservation Act.  HB 436 is a very simple bill.  It states in part,

All federal acts, laws, orders, rules, and regulations, whether past, present, or future, which infringe on the people’s right to keep and bear arms as guaranteed by the Second Amendment to the United States Constitution and Article I, Section 23 of the Missouri Constitution shall be invalid in this state, shall not be recognized by this state, shall be specifically rejected by this state, and shall be considered null and void and of no effect in this state.

It then provides a list of existing and threatened federal violations of the Second Amendment.

In his veto message, Governor Nixon made clear that he recognizes this confederacy of the United States as a government of men and not of laws or principle.  The principle that the English common law, the U.S. Constitution and the Blackstone Initiative were and are founded upon is that there is a higher authority in the law of our nation, a law that all nations are bound to follow, the law of nature.  We are and have a government of laws and not of men.

The law of nature is God’s law whether given in His design of the world or His written word.  All nations are bound to this higher law. That concept was inherent within the English common law, and it was assumed in the founding of this nation.  It is this understanding of a higher law that has caused those in the common law tradition to bind themselves to written documents such as the U.S. Constitution.  Consider the grand traditions of covenantal or constitutional law in the English tradition: the Solemn League and Covenant, Magna Carta, the Mayflower Compact, the Declaration of Independence, and the U.S. Constitution, just to name a few. 

This willingness to commit to a written memorial of higher principles is taken from the book of Deuteronomy.  During the covenantal inauguration of Israel as a new nation, Moses commands the new nation,

And when [the new king] sits on the throne of his kingdom, he shall write for himself in a book a copy of this law, approved by the Levitical priests. ¹⁹ And it shall be with him, and he shall read in it all the days of his life, that he may learn to fear the Lord his God by keeping all the words of this law and these statutes, and doing them, ²⁰ that his heart may not be lifted up above his brothers, and that he may not turn aside from the commandment, either to the right hand or to the left, so that he may continue long in his kingdom, he and his children, in Israel.  Deuteronomy 17.

Ironically, Governor Nixon glosses over this commitment in our Constitution in his own veto message.  He quotes the U.S. Constitution, Article VI, Clause 2,

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.  [emphasis added]

What follows in the Governor’s veto message is a veritable treasure trove of citations to U.S. Supreme Court cases extolling the virtue of federal supremacy, including due deference to that talisman of Supreme Court supremacy Marbury v. Madison.  And there is not just a little confusion over a concept known as nullification.  What the Governor’s message says is that federal edicts are supreme no matter what they say and, in the words of Marbury v. Madison, “It is emphatically the province and the duty of the judicial department to say what the law is.”  5 U.S. 137 (1803).  It elevates our elected officials and our unelected judges over the Constitution.

Governor Nixon failed to consider the seven little words highlighted above in the Supremacy Clause.  “Which shall be made in Pursuance thereof” is not superfluous.  Yes, the Constitution is supreme and all states are bound by it as long as we live in this confederacy.  And all laws of the United States made “in Pursuance thereof” are supreme and all states are bound thereto.  But federal laws that are at odds with the Constitution are not supreme.  The Tenth Amendments speaks to the limited power of the federal agent.  “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”  Any law passed by the federal agent that conflicts with the Constitution is not binding and is void ab initio.  Such laws reside in the exclusive province of the states.

Clearly, any law that restricts the right of gun ownership is in violation of the U.S. Constitution’s Second Amendment.  “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”  Note that the second amendment was adopted for the “security of a free State.”  This right of the people to keep and bear arms shall not be infringed.  Rather than propounding a law that conflicts with the Constitution, HB 436 is enforcing the U.S. Constitution. HB 436 declares its faithfulness to the Second Amendment beautifully in the very first section of the bill.  It is the federal agent that is in violation of the Constitution.

What Governor Nixon has done in his veto message is elevate men over the law.  Per Governor Nixon, it doesn’t matter what the Constitution says.  It doesn’t matter what the law of nature says.  It doesn’t matter what God says.  It only matters what Congress and the President say.  And until such time as the Supreme Court says otherwise we are bound to follow what they command.  Presumably, this would include an edict from the President to house federal troops in every household in Missouri.  Presumably, this would include a prohibition against worshiping in any Catholic or Baptist church and a requirement that all people worship in an Islamic mosque.  Presumably, it would also include an order shutting down the St. Louis Post Dispatch or the Kansas City Star.

HB 436 is not a nullification of a proper federal act.  It is an interposition of the state of Missouri against a threatened violation of the Constitution by the federal agent.  The sovereign state of Missouri has this authority.  The last paragraph of the Declaration of Independence provides, “That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do.”  Our states are free and independent as is the state of Great Britain.  Certainly, they are bound by the Constitution, but they are free to enforce that Constitution as well.  May Missouri so do its duty.  The Legislature must override this veto.

 

Related articles

• Missouri Governor Vetoes 2nd Amendment Preservation Act (tenthamendmentcenter.com)

The U. S. Constitution: Our National Covenant

English: This is a high-resolution image of the United States Declaration of Independence (article (Photo credit: Wikipedia)

A speech given to the Consent of the Governed Rally in Jefferson City, January, 2011:

This morning I come to talk to you about federalism.  Why do I here on these steps in Jefferson City speak to you of federalism?  I speak to you of federalism because this nation is at a cross roads.  There are many in this nation who speak of bipartisanship and compromise.  These are veiled terms for the relinquishment of your liberty.  Indeed, there are many in this nation that propose that the states give in to any edict the federal government imposes.  I come to speak against this idea.

I speak to you of federalism because we must recover the true meaning of federalism, a meaning of relationship and life under God.  The meaning of the word “federal” comes from the Latin word for faith or trust.  The 1828 Webster’s Dictionary defines federal as “Pertaining to a league or contract; derived from an agreement or covenant between parties, particularly between nations.”  These definitions speak of relationship and faith and trust.  Why is this understanding of the word important?  It is important because we have forgotten this aspect of federalism.  It is an understanding that our founding fathers had and drove their actions.

Our founding fathers were students of history and tradition.  They were students of western civilization.  They looked to the past for enlightenment on their authority to act.  They studied history.  They read Cicero.  They read Locke.  But they also read the Bible.  And they found their source for the idea of covenant in the Bible and the covenant God who wrote the Bible.

Indeed, western tradition, Christendom as some have called it, took on the unique practice of writing covenants to govern themselves.  They bound their kings to such charters.  The founders studied these documents.  They studied the Magna Charta, the great charter.  They studied the Solemn League and Covenant.  They knew the Mayflower Compact.  These traditions informed them on how they understood their actions during the founding years of this country.

Consider the words of the Magna Charta and how they inform the meaning of our Declaration of Independence:

Henry by the grace of God King of England,  . . . Know that we, at the prompting of God and for the health of our soul and the souls of our ancestors and successors, for the glory of holy Church and the improvement of our realm, freely and out of our good will have given and granted to . . . all of our realm these liberties written below to hold in our realm of England in perpetuity.

You should note two things.  First, the great charter is a document of relationship.  It sets forth the liberties of the people in relationship to the king.  Second, the great charter is a document based on God’s authority and prompting.  The charter recognized that the people had rights in their relationship to him because the king was prompted by God.

Many years later, those that settled Plymouth entered into the Mayflower Compact.  The same themes can be heard in that covenant:  “In the name of God, Amen. We, whose names are underwritten, the Loyal Subjects of our dread Sovereign Lord, King James, by the Grace of God, . . . do by these presents, solemnly and mutually in the Presence of God and one of another, covenant and combine ourselves together into a civil Body Politick, for our better Ordering and Preservation . . .”  They formed relationship in a Body Politic by the grace of God.

These two themes of relationship and reliance on God would forge the covenantal ideals of our founding fathers.  You can hear these same ideals in our Declaration of Independence.

When, in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the laws of nature and of nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

The Declaration of Independence is a covenantal law suit setting forth the grounds for which the Colonies would dissolve their relationships with Great Britain and do so in the presence of God. Their actions had profound and eternal consequences and they knew it.  It ultimately took a bloody war to expel the invading forces of the tyrant King George, but it was not the war that severed the bands of relationship.  It was the covenantal law suit found in the Declaration of Independence.

After securing their freedom from Great Britain, the 13 original independent colonies formed a weak relationship under the Articles of Confederation and struggled with that relationship for a dozen years.  It was only with the Constitutional convention that the colonies formed a stronger relationship in these terms:  “We the People of the United States, in Order to form a more perfect Union . . . do ordain and establish this Constitution for the United States of America.”

With this statement the colonies established new political bonds, a new relationship, one with another.  It would be a more perfect union, a strong relationship amongst the former colonies, now states.

Many are saying today that the states should give into the federal agent established by the U.S. Constitution.  That is not what I see.  I see a strong relationship among strong states written in the U.S. Constitution.  A strong relationship does not depend on weak parties to the relationship.  A strong relationship depends on strong parties giving faith, trust and exercising their best judgments in the relationship for the liberty of the people.  I see strong states working together to guide their federal agent in the way it should go.

The state of Missouri joined that union in 1821.  What is Missouri’s responsibility as it goes forth this year?  The apostle Paul in Romans 13 declares that the civil magistrate is the servant of God.  This term servant is the same word from which we get deacon.  The service the civil magistrate is to provide to God is to punish the evil doer and defend the doer of good.  A civil magistrate has no authority to make economic choices for a people.  A civil magistrate must defend the right of all people to make their own economic choices.  The state must execute justice and you cannot execute justice when you take from some simply to give to others.

The state of Missouri has one further obligation in these troubled times.  When a party to a covenant is unfaithful to its covenant, it is the responsibility of the other party or parties to call the unfaithful one back to faithfulness.  The federal agent in our national covenant has strayed from its commitment to the U.S. Constitution.  It is time for Missouri, along with the other strong states in this union, to call the federal agent back to faithfulness to the U.S. Constitution.

In closing, I would like to commend my good friend state Senator Jim Lembke for his commitment to these principles.  Senator Lembke has a practice in which he almost never fails to take a copy of the Missouri Constitution wherever he goes.  He gives witness to the fact that the Missouri Constitution is his guidebook for his job.  For that practice, I am grateful.  Our Missouri state legislators should add one more practice to their daily routine.  They should carry and study the U.S. Constitution.  In the days to come, the federal agent will need their guidance on how to bring itself from unfaithfulness to faithfulness.  The U.S. Congress will need the aid of the state of Missouri.  This is aid we Missourians must provide.  God bless America and God bless the state of Missouri.  Thank you.

Related articles

• Covenant and the American Political Tradition (puritanpaleocon.wordpress.com)
• See also, http://jcpa.org/dje/articles/cov-amer.htm.