Thursday, March 12, 2009

McCulloch vs. Maryland: The Anti Magna Carta

I just finished reading William Norman Grigg's latest article over at, The Martial Law Mind-Set. It basically details a number of incidents of assault and murder by policemen in response not to any actual criminal activity, but rather to simple insistence on the part of citizens that they be treated as citizens and free men, rather than simply cringing in servile obedience. It includes a number of contemporary examples, and one ancient one: the murder of Archimedes by an occupying Roman soldier... making the point that many policemen today are behaving much more like an occupying army under a condition of martial law, than as peace officers.

The thing that got me thinking was the idea that policemen may never be prosecuted as individuals. They are generally subject only to departmental discipline, and otherwise above the law... not subject to it... at least when they are on duty and in uniform. The theory behind this, in its basest expression, is that a man acting in the name of the State is not subject to the law, but rather IS the law.

This is far from the ideal, derived from ancient English tradition, that all, even the King himself, are subject to the law. This ideal is best known, to me, through the myths of King Arthur. The best historical expression that I am aware of, perhaps the starting point, is the Magna Carta. Signed at swordpoint by a defeated king, it was the first document detailing certain rights which have survived to this day, including the right of Habeas Corpus. Also included was an explicit declaration that the King is subject to the law, and it even established a procedure for a particular group of barons to take matters into their own hands should the King violate the law. This portion was repudiated at the time, but it indicates the trend of the day, which continued for a very long period of the history of English speaking peoples.

Then came McCulloch vs. Maryland. The State of Maryland attempted to levy a tax on all banks not chartered by the Maryland legislature, including the then new Second Bank of the United States, which had opened a branch in Baltimore, Maryland. McCulloch was the head of the Baltimore branch, and refused to pay the tax on the grounds that institutions established by Congress are immune to State laws. All Maryland's state courts sided with Maryland, until the Supreme Court overturned it on appeal, establishing the principle that the United States Government was supreme. Nobody acting on behalf or the United States Government could be held subject to the law of the several states in any fashion that could be construed as interfering with the actions of the United States. The Court chose the position of the Bank, which the Constitution did not authorize, rather than the States, which the ninth and tenth amendments stated were to be deferred to in all matters not explicitly delegated to the Federal government.

True, this governed only the relationship between the two levels of government. However, it established a principle: our community is not a community of equals, but of higher and lower. The higher are those blessed by their association with the State, exclusively represented by the United States Government (and increasingly by the President alone). The lower is everyone else, and wherever their interests clash, higher must always defer to lower. State governments are subject to their federal superior; ordinary citizens must submit, without complaint or caveat, to those who serve the United States.

I'm not sure if I have a point in this. I simply found the comparison of the two events interesting, representative of two incompatible principles. It was Grigg's article that got me thinking about this.

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Anonymous said...

Your blog keeps getting better and better! Your older articles are not as good as newer ones you have a lot more creativity and originality now keep it up!

Tarvok said...

Why, thank you. I just might have to actually start posting on a regular basis again. Now that I'm working full time again, it's like I got less spare thoughts to unload here.