By Steve Pincus
CHICAGO – In her dissenting opinion in Trump v. United States, Supreme Court Justice Sonia Sotomayor declared that with the majority’s ruling, “the President is now a king above the law.” In this, she is wrong: the majority opinion has given the US president far more power than English kings had at the time of the American Revolution.
When George Washington read the Declaration of Independence to his troops on July 9, 1776, he proclaimed that the document promised “to secure us that freedom and those privileges” guaranteed in “the British constitution.” In so doing, he merely affirmed the principles established in 1688-89, when the English, in their own revolution, had limited the power of kings. The English Revolution had created a king who ruled under the law, and this fundamental principle underpinned the freedoms and privileges protected in the Declaration of Independence.
Washington knew of what he spoke. King James II (1685-89) had used the novel approach of creating ideological tests before he appointed justices to England’s highest courts, including the court of King’s Bench. Bucking centuries of tradition, James had packed the courts with men who had privately promised to render decisions consonant with his exalted views of his own authority.
The king’s position was put to the test in April 1686, when the coachman Arthur Godden was encouraged to bring action against his employer, Sir Edward Hales, for accepting a royal commission in direct violation of established law. James, it turns out, had asserted that it was in his power to dispense with the law when it suited the royal will. Contemporaries understood that this well-publicized and eagerly followed case would be a test of which should be “uppermost, the prerogative or the hitherto pretended liberties of the subject.”
In June 1686, 11 of the 12 hand-picked justices ruled in favor of the king. Echoing the king’s own solicitor, Sir Thomas Powys, the Lord Chief Justice George Jeffreys contended that if the king did not have leeway above the law, “the preservation of the government” might be in jeopardy. The Court of King’s Bench argued for an extensive and virtually unlimited royal prerogative, because otherwise it would be impossible for the king to govern. The French ambassador, a close observer of the case, concluded that “the prerogative attributed the King of England has overturned the laws entirely.”
Godden v. Hales gave English kings almost unlimited power – but only for a very short time. In November 1688, the English people, aided by the Dutch, rose up against James II; and on January 28, 1689, a Convention Parliament declared that he had “abdicated the government” by violating the “fundamental laws” of the kingdom and endeavoring to “subvert the constitution.”
The English had decided that when kings place themselves above the law and act on their own authority, they cease to be kings. But the House of Commons was not satisfied with mere abdication. Sir Joseph Tredenham was only one among a chorus of MPs who denounced the decision “in Sir Edward Hales’s case” for having pulled “all up by the roots,” making “the law of no force.” The decision was “justly decried by all people,” and the justices themselves deserved “to be punished.”
Sir Robert Howard, himself a long-time royalist, thought that even this was not going far enough. All “the advisers and promoters of the judgments” needed to be found criminally liable, he declared. In the end, since many of the judges had already died, the House of Commons decided simply to eliminate the official record of Godden v. Hales so that it could not serve as precedent.
The reasoning offered by the king’s solicitor, Powys, and Jeffreys – who died from injuries suffered at the hands of an angry mob in April 1689 – bears a striking resemblance to the arguments offered by Chief Justice John Roberts in Trump v. United States. Like Powys and Jeffreys, Roberts worried that subjecting the president to the law and “potential criminal liability and the peculiar public opprobrium that attaches to criminal proceedings” would make it impossible for the president to act freely. It would “distort Presidential decision-making,” he says, perhaps making it impossible for the president to govern properly.
In 1689, the English people roundly rejected such reasoning and asserted that their kings would thereafter be subject to the law. They set a precedent by removing James II from office. The Supreme Court’s decision goes beyond threatening more than two centuries of American jurisprudence; it overturns four centuries of Anglo-American jurisprudence. The Roberts majority did not give the president the power of an English king; it gave the president power that an English king could only covet.
Copyright: Project Syndicate, 2024.
