James Bovard
On December 1,
President Joe Biden announced that he was pardoning his son Hunter for all the
crimes he committed from January 1, 2014 through December 1, 2024. Biden’s
sweeping pardon of all of his son’s abuses epitomizes how presidents and their
families are now above the law. It also illustrates how the “King James Test
for American Democracy” could become the death of the Constitution.
The American
Revolution was heavily influenced by a political backlash that began across the
ocean in the early 1600s. King James I claimed a “divine right” to unlimited
power in England, sparking fierce clashes with Parliament. Since the 9/11
attacks, some of the same moral and legal principles have been advanced in this
nation, but few people recognize the historical roots.
Before he became
king of England in 1604, James was king of Scotland. He cemented his claims to
absolute power there by launching witch panics and burning hundreds of Scottish
women alive to sanctify his power. Harsh methods were not a problem because James
insisted that God would never allow an innocent person to be accused of
witchcraft. “While James’s assertion of his [Scottish] royal authority is
evident in his highly unorthodox act of taking control of the pre-trial
examinations, it is his absolutism which is most apparent in his advocating the
use of torture to force confessions during the investigations,” according to
the University of Texas’s Allegra Geller, author of “Daemonologie and Divine
Right: The Politics of Witchcraft in Late Sixteenth-Century Scotland.” Torture
produced “confessions” that spurred further panic and the destruction of far
more victims. England did not have similar witch panics because officials were
almost entirely prevented from using torture to generate false confessions. James
justified the illicit torture, “asserting his belief that as an anointed king,
he was above the law,” and similar rationales emitted from the Bush
administration from 2002 onward in the name of the 9/11 attacks.
After Queen
Elizabeth died and James became king, he vowed that he had no obligation to
respect the rights of the English people: “A good king will frame his actions
according to the law, yet he is not bound thereto but of his own goodwill.” And
“law” was whatever James decreed. Nor did he flatter the men elected to the
House of Commons: “In the Parliament (which is nothing else but the head court
of the king and his vassals) the laws are but craved by his subjects and only
made by him at their rogation.” James proclaimed that God intended for the
English to live at his mercy: “It is certain that patience, earnest prayers to
God, and amendment of their lives are the only lawful means to move God to
relieve them of their heavy curse” of oppression. And there was no way for
Parliament to subpoena God to confirm his blanket endorsement of King James.
James reminded
his subjects that “even by God himself [kings] are called Gods.”
Seventeenth-century Englishmen recognized the grave peril in the king’s words.
A 1621 Parliament report eloquently warned: “If [the king] founds his authority
on arbitrary and dangerous principles, it is requisite to watch him with the
same care, and to oppose him with the same vigor, as if he indulged himself in
all the excesses of cruelty and tyranny.” Historian Thomas Macaulay observed in
1831, “The policy of wise tyrants has always been to cover their violent acts
with popular forms. James was always obtruding his despotic theories on his
subjects without the slightest necessity. His foolish talk exasperated them
infinitely more than forced loans would have done.” Macaulay scoffed that James
was “in his own opinion, the greatest master of king-craft that ever lived, but
who was, in truth, one of those kings whom God seems to send for the express
purpose of hastening revolutions.” After James’s son, Charles I, relied on the
same dogmas and ravaged much of the nation, he was beheaded. Charles I’s son
ascended to the English throne in 1660, but his abuses spurred the Glorious
Revolution of 1688 and sweeping reforms that sought to forever curb the power
of monarchs.
A century and a
half after King James denigrated Parliament, a similar declaration of absolute
power spurred the American Revolution. The Stamp Act of 1765 compelled
Americans to purchase British stamps for all legal papers, newspapers, cards,
advertisements, and even dice. After violent protests erupted, Parliament
rescinded the Stamp Act but passed the Declaratory Act, which decreed that
Parliament “had, hath, and of right ought to have, full power and authority to
make laws and statutes of sufficient force and validity to bind the colonies
and people of America, subjects of the crown of Great Britain, in all cases
whatsoever.” The Declaratory Act canonized Parliament’s right to use and abuse
Americans as it pleased.
The Declaratory
Act ignited an intellectual powder keg among colonists determined not to live
under the heel of either monarchs or parliaments. Thomas Paine wrote in 1776
that “in America, the law is king. For as in absolute governments the King is
law, so in free countries the law ought to be King; and there ought to be no
other.” The Founding Fathers, having endured oppression, sought to build a
“government of laws, not of men.” That meant that “government in all its
actions is bound by rules fixed and announced beforehand — rules which make it
possible to foresee with fair certainty how the authority will use its coercive
powers,” as Nobel Laureate Friedrich Hayek noted in 1944.
For generations,
American politicians spoke reverently of the Constitution as America’s highest
law. But in recent years, the Constitution has fallen into disrepute. The rule
of law now means little more than the enforcement of the secret memos of the commander-in-chief.
We now have the
“King James Test for American Democracy.” As long as the president does not
formally proclaim himself a tyrant, we are obliged to pretend he is obeying the
Constitution. Government is not lawless regardless of how many laws it violates
— unless and until the president formally announces he is above the law.
While King James
bluntly declared his right to absolute power 400 years ago, recent presidents
only make such claims via their lawyers, often in secret documents that
citizens are supposed to never see.
The most
important recent change in American political thinking is nonchalance regarding
government criminality. The notion that “it is not a crime if government does
it” is the new conventional wisdom in Washington. It doesn’t matter which
agency or official broke the law. Instead, the only prudent response is to
pretend nothing is amiss.
Nowadays, every
act of government is judged in a vacuum, as if every constitutional violation
is a fluke. This is the mirror image of how the Founding Fathers viewed
government power. In 1768, John Dickinson wrote that colonists fixated on “not
what evil has actually attended particular measures but, what evil, in the
nature of things, is likely to attend them.” Dickinson pointed out that because
“nations in general, are not apt to think until they feel … nations have lost
their liberty.” The Founding Fathers looked at the liberties they were losing,
while modern Americans focus myopically on the rights they supposedly still
retain. Law professor John Phillip Reid, in his seminal work The Concept of
Liberty in the Age of the American Revolution, observed that liberty in the
18th century was “largely thought of as freedom from arbitrary government…. The
less a law restrained the citizen, and the more it restrained government, the
better the law.”
But government
officials now claim unlimited discretion to define the law and their own
prerogatives. Jack Goldsmith, who headed the Justice Department’s Office of
Legal Counsel in 2003–04, later explained how top Bush officials dealt with
“laws they didn’t like: they blew through them in secret based on flimsy legal
opinions that they guarded closely so no one could question the legal basis for
the operations.” It is no longer a question of having good laws, including laws
that permit officials limited flexibility for contingencies. The rule of law
has come to mean nothing more than finding a single lawyer who will say “Yes,
Master!” to his political overlords. But it is folly to make the survival of
liberty hinge on lawyer’s sense of shame.
If the Iraq war
had not turned into a debacle, most of the media and the political ruling class
would have continued deferring to President George W. Bush almost
across-the-board. As long as his popularity ratings were high, he could do
little or no wrong. America’s “best and brightest” were as naive or craven as
the courtiers who defended the mass burning of Scottish women 400+ years
earlier.
The
Constitution’s checks and balances failed to deter recent administrations from
erecting the legal scaffolding of dictatorship. Instead, implausible denials of
seizing excessive power have been followed by “dictatorial apathy.” Lawless
power grabs have become another background noise in Washington. Presidents and
their legal teams can claim absolute power — and almost no one inside the
government or the Justice Department blows the whistle. President Bush could
boast that he was obeying the law because his appointees assured him that he
was the law. Legions of government employees safeguarded their careers by going
along and enforcing Bush-era absolutist legal doctrines. That settled any
doubts about whether Justice Department officials would be willing tools for
future presidents who trample the Constitution.
Inside the
Beltway, a mystical adoration of power is taken as proof of wisdom. In 2007,
Bush nominated former federal judge Michael Mukasey as attorney general. Three
years earlier, Mukasey had proclaimed that “the hidden message in the structure
of the Constitution” is that the government is entitled to “the benefit of the
doubt.” Mukasey did not reveal where the message was hidden. Mukasey’s “benefit
of the doubt” assertion may have helped him snare the top law-enforcement job
in the nation, where he provided all the benefits Bush needed.
The more power
politicians capture, the more flattery they hear, and the more deluded they
usually become. A phalanx of academics is always ready to cheer power-hungry
presidents. In 2007, Harvard University government professor Harvey Mansfield
exalted “one-man rule” in a Wall Street Journal oped, scoffed at the rule of
law, and declared that “free government should show its respect for freedom
even when it has to take it away.” And since the president is entitled to vast
power, how would we know it is still a “free government?” Presumably because it
would be a crime to assert otherwise. Mansfield scorned contemporaries who
“forget to consider emergencies when liberties are dangerous and law does not
apply.” The previous year, Mansfield wrote in a Weekly Standard article that
the “Office of President” is “larger than the law” and that “ordinary power
needs to be supplemented or corrected by the extraordinary power of a prince,
using wise discretion.” Mansfield also asserted that in emergencies, “liberties
are dangerous and law does not apply.” Such assertions may have swayed the
National Endowment for the Humanities to select Mansfield in 2007 to deliver
its Jefferson lecture — “the highest honor the federal government bestows for
distinguished intellectual and public achievement in the humanities.”
Mansfield’s
cheerleading fits a pattern that goes back millenniums. Throughout history,
intellectuals downplayed the perils of political power. As long as court
intellectuals were treated royally, rulers were indemnified for any and all
abuses of the peasantry.
As French
philosopher Bertrand Jouvenal noted in 1945, “Authority can never be too
despotic for the speculative man, so long as he deludes himself that its
arbitrary force will further his plans.” John Maynard Keynes, the most
influential economist of the 20th century, exemplified this attitude. Keynes
declared in 1944 that “dangerous acts can be done safely in a community which
thinks and feels rightly, which would be the way to hell if they were executed
by those who think and feel wrongly.” And who is to judge whether the community
“thinks and feels rightly?” The same politicians seizing boundless power.
The same passion
for absolving high-level wrongdoers is often expressed in muffled terms by the
editorial pages of the Washington Post and other leading papers. From 2008
onwards, the Post inveighed against permitting lawsuits that sought to hold
former Attorney General John Ashcroft, former Defense Secretary Donald
Rumsfeld, and other top officials liable for the torture and other abuses that
occurred on their watch. One Post editorial fretted: “Officials should not have
to fear personal lawsuits for performing their duties in good faith and in
violation of no established legal precedent.” This practically assumed the
existence of “good faith torture” — as if maiming and beating people to death
was the moral equivalent of a clerical error.
Unfortunately,
the same “absolve everything” mindset often prevails in the federal judiciary.
Government officials have become practically untouchable at the same time that
they have become far more dangerous. The Supreme Court has expanded sovereign
immunity like a toxic legal cloud. As Senator John Taylor warned in 1821,
“There are no rights where there are no remedies, or where the remedies depend
upon the will of the aggressor.”
Nowadays,
lawless government is simply benevolence on amphetamines. Rather than the rule
of law, we now have the “friend of humanity rhetorical test.” As long as
politicians profess to be doing good, it is bad taste to quibble about legal
technicalities or archaic constitutional clauses. The question is not what the
president actually did but whether he “meant well.” The word “dictator” applies
only to government officials who publicly announce plans to do bad things to
good people.
How many
dictates must a politician issue before we can label him a dictator? Sen.
Daniel Webster warned in 1837 that “the Constitution was made to guard the
people against the dangers of good intentions. There are men in all ages who
mean to govern well, but they mean to govern. They promise to be good masters,
but they mean to be masters.” Americans must decide whether they want good
leashes or a good master. We can either stop politicians from continuing to
abuse their power, or we can spend our time looking for a wise and merciful
despot. Either way, democracy cannot survive power worship.
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