In her dissenting opinion in Trump v. United States, Supreme Court Justice Sonia Sotomayor declared that with the majority ruling, “the president is now a king above the law.” Here she is wrong: The majority of the Court gave the American president much more power than the English kings had. at the time of the American Revolution.
According to the criteria of
When George Washington read the Declaration of Independence to his troops on July 9, 1776, he proclaimed that the document promised to “secure to us the liberty and privileges” guaranteed in “the British Constitution.” In doing so, he was merely affirming the principles established in 1688–89, when the English, in their own revolution, limited the power of kings, forcing them to rule under law. This fundamental principle underpinned the liberties and privileges protected in the Declaration of Independence.
Washington knew what he was talking about. King James II (1685-1689) used the “novel” method of creating ideological tests before appointing judges to England’s highest courts, including the Court of King’s Bench (a division of the High Court). Contrary to centuries of tradition, James filled the courts with men who privately promised to make decisions in accordance with their own authority.
The king’s position was put to the test in April 1686, when the coachman Arthur Godden was encouraged to bring a suit against his employer, Sir Edward Hales, for accepting a royal commission in direct violation of established law. In the midst of the case, King James claimed that it was within his power to dispense with the law when it suited the royal will.. Contemporaries understood that this situation, well publicized and eagerly followed, would be a test of what should prevail, whether “the prerogative of the king or the alleged freedoms of the subjects.”
In June 1686, 11 of the 12 hand-picked judges ruled in favour of the king. Echoing the king’s solicitor, Sir Thomas Powys, Chief Justice George Jeffreys argued that if the king was not given room to manoeuvre above the law, “the preservation of the Government” might be in jeopardy. The Court of King’s Bench upheld the royal prerogative, which was broad and practically unlimited, because it would otherwise be impossible for the king to govern. The French ambassador, a careful observer of the case, concluded that “the prerogative attributed to the King of England nullified the laws completely.”
The case of Godden v. Hales gave the 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 of Parliament declared that the king had abdicated government by violating the “fundamental laws” of the realm and attempting to “subvert the constitution.”
Stop being kings
The English agreed 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 content with mere abdication. Sir Joseph Tredenham was just one of a chorus of MPs who denounced the decision “in the case against Sir Edward Hales” as having torn “everything up by the roots”, rendering “the law powerless”. The decision was “rightly condemned by the whole world”and the judges themselves deserved to “be punished.”
Sir Robert Howard, a long-time defender of the monarchy, thought that even this did not go far enough. All “the advisers and promoters of the trials” should be held criminally responsible, he declared. In the end, with many of the judges already dead, The House of Commons decided simply to remove the official record of Godden v. Hales so that it could not serve as a precedent.
The reasoning offered by the king’s solicitor and chief justice—who died from wounds sustained at the hands of an angry mob in April 1689—bears a striking resemblance to arguments offered by U.S. Supreme Court Chief Justice John Roberts in Trump v. United States. Like Powys and Jeffreys, Roberts, the ruling says, is concerned that subjecting the president to the law and “the potential criminal liability and peculiar public opprobrium that attend criminal prosecutions” makes it impossible for the president to act freely. “This would distort presidential decision-making,” the judge argues, and would perhaps make it impossible for the head of state to govern properly.
In 1689, the English people roundly rejected such reasoning and declared that their kings would henceforth be subject to the law. They set a precedent by deposing James II. The Supreme Court’s decision goes beyond threatening more than two centuries of American jurisprudence; for it generally overturns four centuries of Anglo-American jurisprudence. The Court majority did not give the President the power of an English king, but rather gave him the power that only an English king could covet.
STEVE PINCUS
© PROJECT SYNDICATE
CHICAGO
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