Forget ye not Magna Carta (or George Cony, short-lived martyr)

June 15, 2015:- “Forget not after all these years the Charter signed at Runnymede,” as Rudyard Kipling urged in his epopee to Magna Carta, the document to which King John affixed his seal 800 years ago today. Among the reasons for forgetting not Magna Carta after all these years — and for wishing it a happy birthday — is the provision that underpins our modern notion of due process:

No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his peers or by the law of the land.

The observance of due process sends a strong signal that a society rests on the rule of law. Conversely, the absence of due process is compelling evidence of a society living under tyranny. So this notion, first announced in Magna Carta, still matters, as does another principle that had its roots in Magna Carta, that only the legislature — not the executive — may levy taxes.

Some 440 years after its adoption, in the period that followed the English Civil War, a merchant by the name of George Cony relied on this principle when he got his tax bill. After Oliver Cromwell had persuaded Parliament to enact the Instrument of Government, a written constitution that made him Lord Protector, Cromwell and his Council set about collecting customs duties.  Article 27 of the Instrument of Government expressly allowed the Protector and Council to do so.  George Cony refused to pay customs duty on the grounds that the Cromwell and his Council had imposed the tax without the consent of Parliament.  Although the Instrument of Government might permit them to do so, Magna Carta did not, in Cony’s opinion.

Cromwell did not think much of Cony’s constitutional contention and threw him in jail. When Cony’s three attorneys appeared before the Council to argue for his release, Cromwell threw them in jail as well.  For an account of Cony’s case I am indebted to Stephen F. Black’s 1976 article about the judiciary under Cromwell.*  According to Mr. Black, what seemed to really nettle Cromwell was the lawyers’  bringing up Magna Carta.

Cromwell, irked, referred to Magna Carta as “Magna Farta,” evidence that the notoriously dour Protector had a schoolboyish sense of humor (so I suspect that in his days as a cavalry general he would probably have yearned for this talented horse under his saddle). Cromwell told Cony’s lawyers that if “they would have Magna Farta, they must put on a helmet and troope [i.e. march] for it.”  So off to the Tower the barristers marched, nudged along by big men bearing swords and pikes, and remained there for about a fortnight.  But, as Mr. Black explained, “Cromwell quickly recognized the danger of alienating the entire legal profession by incarcerating three of its leading members solely for their impassioned advocacy of a client’s cause.” So out of the Tower they trudged, thanks to political calculation trumping protectoral pique rather than to any observance of due process. And after two weeks in confinement staring at the 15-feet thick walls, they might not have concurred with Mr. Black’s choice of the adverb “quickly.”

Perhaps Cony hoped that his freshly-sprung attorneys  would persuade an appellate court to order his release. But Cromwell’s next step made that outcome extremely unlikely, to put it mildly. To the old adage “if you can’t argue the facts argue the law, and if you can’t argue the law argue the facts,” Cromwell added “and if you can’t argue either, pack the court.”  He replaced the awkwardly scrupulous chief justice, Henry Rolle, with John Glynne, a judge who had learned the possible advantages of becoming a pliant ally of the new regime during his own stint in the Tower. Glynne’s appointment seems to have prompted Cony to realize that any appeal would be futile. He could remain in jail indefinitely, a martyr for the cause of an important constitutional principle, or he could pay up and go home.  Cony chose the second option, and who can blame him.

Today, on the 800th anniversary of Magna Carta, what can we learn from George Cony’s 360-year old case? One significant lesson, I believe. Without an independent judiciary and the rule of law, liberty withers. The trappings of legality that decorated Cromwell’s regime made no difference to George Cony and his lawyers when they had the gall to remind the Lord Protector what it was that he was supposed to be protecting, namely liberty under law.  Before and during the Civil War, Cromwell and his fellow parliamentarians made much of the King’s derogations from Magna Carta, but when he became king in all but name Cromwell himself ignored one of Magna Carta’s most important provisions: due process.  Although the Instrument of Government with its apparent checks and balances supposedly constrained Cromwell, his power to tax without the consent of the legislature left the liberties of the people as brittle as the parchment of Magna Carta.

* Black, S. “Coram Protectore: The Judges of Westminster Hall under the Protectorate of Oliver Cromwell,” American Journal of Legal History 20(1) pp. 32-64.


Original Sins

May the Massachusetts Senate use the budget process to change the state income tax?  If so, why: if not, why not?

This is not a bar exam question, but in future maybe the commonwealth’s law schools should include it in their curricula together with the answer. First, of course, we need to find out what the answer is. I think I know, so when the Supreme Judicial Court (SJC) looks at the amicus briefs it received in response to its call, somewhere in the pile will be mine.

The question is on the SJC’s docket because the House of Representatives put it there, in the form of a request for an advisory opinion. Unlike the Supreme Court of the United States, which can decide only case and controversies – meaning litigation between opposing parties – the SJC has the authority to issue opinions as to whether a proposed piece of legislation would pass constitutional muster, a sort of pre-clearance. It is only the House, the Senate, and the Governor and Council that have the right to request advisory opinions, and then only “upon important questions of law, and upon solemn occasions,” i.e. not upon questions relating to the court’s favorite color.

To know why the House is asking the SJC to opine on the Senate’s ability to vary the tax rate via the budget bill, a précis of the historical background may prove helpful.

Almost 100 years ago, the people of Massachusetts elected a Constitutional Convention, which recommended a series of constitutional amendments. In 1917-18, the voters ratified 22 of them including Article 63, which prescribes the budget-making process. Under Article 63, the Governor recommends to the Legislature a budget containing “all proposed expenditures of the commonwealth for the fiscal year.”  The Legislature then incorporates “all appropriations based upon the budget to be paid from taxes or revenues… into a single bill which shall be called the general appropriation bill,” and has the right to “increase, decrease, add or omit items in the budget.”  After the Legislature has passed the appropriations bill, the Governor may choose to “disapprove or reduce items or parts of items,” a power commonly known as the line-item veto.

As is the norm, earlier this year the incoming Governor, Charlie Baker, filed his budget bill with the Legislature. The House of Representatives sent its general appropriations bill to the Senate. Then something unusual happened. The Senate replaced a section of the bill with its own section, one that would fix the personal income tax at 5.15%. This, claims the Speaker of the House, violates the origination clause, the part of the State Constitution that says, “All money bills shall originate in the House of Representatives; but the Senate may propose or concur with amendments, as on other bills.” No, replies the President of the Senate, it does not violate the origination clause, because the House bill you sent up contained a couple of tax measures thereby rendering it a money bill.

So is it a straight appropriations bill, or a tax measure trapped in the body of an appropriations bill? It has to be one or the other: the statute book has markedly fewer identity options than Facebook’s current tally of 58.

Those of you following the Obamacare litigation will be familiar with the federal origination clause, which provides: “All bills for raising revenue shall originate in the House of Representatives, but the Senate may propose or concur with amendments as on other bills.” U.S. Const., art. I, s. 7, cl. 1.  At issue in the latest Obamacare case is the extent of Senate’s power to amend revenue bills that it receives from the House.  Does the prerogative of proposing or concurring with amendments as on other bills give the Senate carte blanche?

By way of an analogy, I ask that you imagine settling down with your youngest for a bedtime story. You turn off the overhead, switch on the lamp, make sure teddy is comfy, and read the words, “In the great green room there was a telephone and a red balloon and,” (turn page) “the wealth of those societies in which the capitalist mode of production prevails presents itself as an immense accumulation of commodities.” You pause, skip ahead, and find more such dross. Where you expect a reference to a cow jumping over the moon you read “just as in the simple circulation of commodities the double change of place of the same piece of money effects its passage from one hand into another, so here the double change of place of the same commodity brings about the reflux of the money to its point of departure.”

Soporific, yes, but not what you had in mind for your little pumpkin’s nightly nudge toward the Land of Nod. And then realization dawns, and you think to yourself: Darn, someone has gone and replaced all but the first few words of Goodnight Moon with Das Kapital.  And that, according to the Pacific Legal Foundation, the organization representing the plaintiff in Sissel v. U.S. Department of Health & Human Services, is pretty much what the United States Senate did with the House bill that became the Affordable Care Act (ACA).

The House passed H.R. 3590, a seven-page measure titled “a bill to amend the Internal Revenue Code of 1986 to modify the first-time home buyers credit in the case of members of the Armed Forces and certain other Federal employees, and for other purposes,” of which the Senate retained the first 19 words (“be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled”) deleted everything else (all that stuff about service members and veterans, etc.) and inserted the 1,500-page Affordable Care Act. For a visual demonstration of that substitution, performed by the Rep. Louie Gohmert (R-TX, 1st District), click here and start watching at minute 4:20.  For extra fun, hit mute and try to discern from Rep. Gohmert’s facial expressions and gestures whether he (a) approves or (b) disapproves.

The Pacific Legal Foundation argues that the Senate’s cut-and-paste job violated the origination clause. It says that there is a difference between, on the one hand, amending and, on the other, complete substitution. Likewise, here in Massachusetts the Speaker of the House contends that the Senate went too far when it took a section from the House bill relating to tax credits and replaced it with a section that would freeze the income tax rate at 5.15% (rather than let it decline in accordance with the wishes of the voters, a clear majority of whom endorsed the measure on the 2000 statewide ballot to roll back the income tax to 5%). This complete substitution goes beyond the scope of the term “propose or concur with amendments, as on other bills,” suggests the Speaker.

While the Senate’s wish to flout the will of the voters and keep the income tax at 5.15% reflects about as much economic wisdom as the ACA, my opinion, which I hope the justices of the SJC will find persuasive (or, more realistically, at least ask one of the junior clerks or interns to skim), is that complete substitution is constitutional. The merit of the proposed tax hike – or tax-reduction pause, to be more neutral – is not relevant to the question of whether it comports with the Constitution. Similarly, the efficacy of the ACA has no bearing on whether its enactment conformed to the requirements of the origination clause.

If the federal origination clause said “the Senate may propose or concur with amendments as on other bills so long as the amendments are germane,” the outcome should be different. But it says no such thing. Adding those words involves amending the Constitution, and the route is via Article 5 not the judiciary.