2014/06/28

Magna Carta

Much has been written, and miswritten, on the Magna Carta. It expressed several key principles of law that were incorporated into the U.S. Constitution, and most other national and state constitutions. Of course, most of it is no longer applicable. It was written for the legal situation in feudal England in 1215, covering issues that just don't arise in modern republics.

The key point that remains controversial today is in two parts:

a. Officials, including the chief executive (the king) is subject to the same laws as everyone else.
b. Those officials are personally liable for the injuries they do, contrary to law.

What is presumed is that officials only have limited powers. The king is not the sovereign, because he is subject to higher laws — the laws of nature — which honest men can discover and apply, in principle. (In practice they tend to "find" that the law favors them, but that is a separate question.)

That's why it was deemed so outrageous for Nixon to say, "It's legal if the president does it."

But Nixon's comment is revealing, because while these principles are accepted by almost all officials, at least in public, the problem comes when they or their appointees decide whether what they are doing is lawful. If it is lawful, they can't be held liable for injuries, but if a suit for damages is not even allowed to be heard on its merits, there is no way for an independent forum (a jury) to decide whether it was lawful. The problem with "qualified immunity", as currently practiced, is that the injured party can't get a trial on the merits.

"Sovereign immunity" is not the same as official immunity. That is about the state being liable, rather than the official. Again, it makes some sense to restrict how one who might get a judgment against the state may collect, generally from a fund established by the legislature to pay such claims. If judgment creditors could seize any state property they can find, the courts that grant such judgments would have the power to destroy the state. However, that does not mean a claimant should be prevented from getting a trial on the merits, by requiring that he must get the consent of the state to even get a trial.

The right to redress (which is in the Ninth Amendment, not the First) requires that one be able to get a trial on the merits, even if the options for collecting a judgment, or to get injunctive relief, are limited. It should certainly always be possible to get a declaratory judgment on any legal question, even if that brings no other relief than the support of public opinion.

As I have often said, the problem is not that we have "lost" our rights, or that, since every right must have at least one remedy, we have "lost" our remedies. The problem is that access to our remedies has been put out of the reach of most people, at an affordable cost. That is a problem of custom, policy, practice and procedure, not the law per se.

Any real reforms need to open the legal system to intervention by outsiders who are not controlled by it. That means both structural and procedural reforms, not just aspirational laws.

Some write about the Magna Carta as though it was some unprecedented breakthrough in legal affairs, if not in Europe, then at least in England. Not really. Almost all monarchs in Europe of that time, even if some claimed rule by "divine right", were subject to being deposed by a class of aristocrats, and to having a new one elected by them. The barons at Runnymede were just pushing back against monarchical overreach, but they did codify their position in terms that, while it was initially intended only to protect them, also came to be understood to protect common people as well.

One precedent was actually in Spain, the 1020 Fuero de León, followed by the Cortes de León in 1188, which set up one of the first parliaments since ancient times. Another precedent was the Holy Roman Empire, which despite its name, was ruled by an elected "emperor" with limited powers. The "electors" — princes of the "states" of that confederation — did not meet together as a parliament regularly, but did have to consent to any laws the emperor might make. Emperor Frederick II did establish the Liber Augustalis, or, Constitutions of Melfi (1231), an early model for constitutions.

It did not take long for King John to start ignoring the Magna Carta, and his successors further ignored it. Finally, Simon de Montfort, Earl of Leicester, revolted against King Henry III, established the first English parliament with the Provisions of Oxford, but those reforms died with him at the Battle of Evesham. (Had he lived political and legal history might have been advanced by 600 years.) However, although the Provisions were suppressed, the idea could not be completely, and that led to the Confirmatio Cartarum (1297), which united Magna Carta to the common law by declaring that the Magna Carta could be pled in court. Once court precedents began to be built on it, the line of legal rights it began slowly gained ground over the centuries that followed.




It is sometimes, mistakenly, argued that the Magna Carta laid the basis for grand juries or trial by jury. But the council of barons was a precursor of a parliament, particularly of a House of Lords, not of a grand jury, and at that time the customary method of deciding cases was combat or compurgation (getting twelve people to swear you were telling the truth). No, the grand jury for indictment, and the trial jury for a verdict, has its roots in the juries of ancient Greece, Israel, and Rome. The size of the jury comes from Hebrew law, the sanhedrin, which got its name from the Greek synedrion, and developed under Greek rule.

The struggle for legal rights and republican government has had a long, complicated history, with advances and retreats all across Europe and other parts of the world. We document much of that history on our site. So don't get discouraged. Our battles are just the latest episode in a long saga.

2014/06/24

Intent of 14th Amendment

To my 2000 article Intent of the Fourteenth Amendment was to Protect All Rights I make the following clarifying points:

1. The 14th Amendment did not confer U.S. citizenship on individuals born on U.S. soil, whose parents were not subject to the jurisdiction of a foreign power. That was already the established rule, inherited from English law, and U.S. citizenship arguably began on non-state territory with adoption of the Articles of Confederation (ratified 1781) and the adoption of the Northwest and Southwest Ordinances (1787), which transferred sovereignty of the western territories, previously subject to conflicting claims by the states, to the emerging United States (a term that originated during the earlier (1774) Articles of Association under which the War of Independence was fought.

2. Adoption of the U.S. Constitution made all persons born on the soil of any of the states U.S. citizens as well as those born on any of the non-state territories, and conferred on Congress the power to make rules for naturalization.

3. The U.S. Constitution put restrictions of the states in Art. I Sec. 10, and since all restrictions on government powers are rights, or more precisely, immunities, it thereby established rights of U.S. persons (not just citizens) in the states against their states, justiciable in U.S. courts.

4. The language of the Bill of Rights (1791), except that of the First Amendment, seemed to apply equally to the U.S. and state governments, and like Art. I Sec. 10, to make an exception to the omission from Art. III of federal court jurisdiction over cases between a citizen and his state, but it attached rights to persons, not just citizens. (The Framers, in writing Art. III, presumed a person who was a resident of a state would also be a citizen of that state, and did not anticipate states would later assert a different position.)

5. However, the states defined state citizenship as well, and in ways that did not include the same individuals as were included in U.S. citizenship, such as blacks.

6. Some of the southern, slaveholding, states belatedly realized that if the Fifth Amendment Due Process Clause applied to them, and federal courts had jurisdiction, slaves could sue in federal courts for their freedom, as deprivation of liberty without due process of law.

7. This led to two main cases. Barron v. Baltimore (1833) and Dred Scott v. Sanford (1857). In Barron, slavery was not the issue. The Takings Clause of the Fifth Amendment was the issue. But it was realized, when it got to the Supreme Court, that if the Court decided in favor of Barron, it would establish a precedent that would allow slavery to be challenged, so it decided against him, and CJ Marshall (wrongly) held the U.S. courts did not have jurisdiction to decide cases over the Bill of Rights between a citizen and his state.

8. In Dred Scott slavery was the issue. The problem was that the federal courts could not avoid jurisdiction because persons of different states were the opposing parties. The Bill of Rights, and other provisions of the U.S. Constitution, associate rights with personhood, not citizenship, and it was already established precedent that blacks were persons, so CJ Taney for the U.S. Supreme Court weaseled out of the trap by (wrongly) holding that blacks were not and could not be citizens, and thus, federal courts would not have jurisdiction, since Art. III uses the term "citizen" instead of "person" in defining jurisdiction. The effect was to make the rights of persons not citizens non-justiciable in federal courts, contrary to the obvious intent of the Bill of Rights.

9. By the time the view developed that both precedents had to be overturned, and that it would take an amendment to do that, many more precedents had been built on those two cases. So it was not enough for an amendment to just refer to the two cases and explicitly overturn them. It had to adopt general language that would cover the entire system of precedents based on them, past and future.

10. That left the problem that the states could not be allowed to deny rights to persons on their territories by defining them as noncitizens. That could make the U.S. Constitution a nullity in such states, by doing something outlandish like defining Jim Bob and Red Neck as the only citizens. So what the 14th Amendment did do was make all U.S. citizens state citizens if they reside in the state (although it neglected to define residency). That included blacks. However, it also neglected to make clear that most rights belong to persons and not just citizens.

11. Some would argue that the language they chose was not very clear, and that a better wording was needed, but if one tries to find better language, it is not all that easy. (If I had been there, I could have done it, as I have above, but I was born too late.)

12. There is actually no U.S. Supreme Court decision that sustains the offspring born on U.S. soil of parents who have entered U.S. soil illegally to be natural born U.S. citizens. Such parents are arguably not "subject to the jurisdiction" in that they did not seek and obtain consent to enter. All the cases have either been parents who entered legally, or for which the legality of their entry was not before the court. There is a presumption that those born on U.S. soil are natural born citizens, subject to proof to the contrary, and in the absence of someone to argue that position, the presumption stands. If someone wants to get a precedent to that point, one needs to take a case to the U.S. Supreme Court.

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