The Supreme Court Defies its Platform in Service of an Imperial Presidency

For years to come, constitutional scholars and historians will long note the irony of the Supreme Court’s defiance of its own intellectual platform in rendering a decision in Trump v. United States, on the eve of the anniversary of the Declaration of Independence, that creates out of whole cloth the dangerous doctrine of executive immunity in service of an Imperial Presidency. The very concept of clothing the American Presidency with protection that placed the English King above the law, was rebuked by the Framers of the Constitution, who sought, in the words of James Madison, to “confine and define” presidential power. The Supreme Court’s ruling rejected the wisdom and vision of Madison and the other delegates in the Constitutional Convention and infused the presidency with unconfined and undefined authority.

In its most consequential ruling on presidential power in the nation’s history the Court, in a 6-3 decision, set the Constitution on its head in holding that the president enjoys absolute immunity from criminal prosecution in the exercise of “core constitutional powers,” and in the process revived the harpies of monarchical power that compelled the country’s founders to declare independence and launch the American Revolution, in large part because of the English King’s “injuries and usurpations” that led to the “establishment of tyranny.”

The Court’s ruling on this Fourth of July holiday, the celebration of which in public schools includes reminders of the King’s offenses against the colonists, tosses aside the exalted American principle that “no man is above the law” in exchange for a judicial invention that the president possess immunity from criminal prosecution when the courts say he possesses it. Grounded on the false premise—textually, historically and logically—that an American president requires immunity in order to perform the duties of the office, the Court’s decision will leave the nation to engage in a guessing game on the question of when the president is exercising “official” versus “unofficial” acts, whether the acts in question are core or peripheral in nature, whether the acts are a function of an ignoble purpose and whether the president might engage in a criminal act that can be saved from scrutiny by simply, and cynically, calling it “official.” The ruling loosens the restraints of the Constitution and the criminal justice system on the American Presidency, and recalls the dire warnings of Thomas Jefferson, the principal author of the Declaration of Independence, against converting “the chains of the Constitution into ropes of sand.”

The Court’s interest in protecting the presidency from prosecution represents a rebuke to both the Declaration of Independence and the Constitution. James Wilson, second in importance only to Madison as an architect of the Constitution, and chair of the Constitutional Convention’s powerful Committee on Detail, assured Americans that the “prerogatives of the Crown” are of “no guide” to this “Republic,” and laid bare the Framers’ commitment to severing every tie to monarchical authority, including the precious protection for the king from prosecution. To a man, delegates to the Convention were dedicated to establishing the rule of law, not the creation of an embryonic monarchy. Wilson declared of the newly minted presidency: “not a single privilege is annexed to his character; far from being above the laws, he is amenable to them in his private character as a citizen, and in his public character by impeachment.” This ringing endorsement of the exalted principle that, in America, all men are equal in the eyes of the law, meant that Chief Justice John Marshall, presiding over the treason trial of Aaron Burr in 1807, held that a subpoena could issue to President Jefferson, to come before a court of justice, as it could to all other citizens.

The Court’s decision to engraft upon the Constitution presidential immunity from prosecution represents, not an originalist, but rather an activist approach to constitutional interpretation. An originalist method would begin with the text of the Constitution, but the Court doesn’t cite the text because there is no mention of immunity, and the Justices don’t cite any of the debates in the Constitutional Convention, the second pillar of originalism—because no delegate to the Convention entertained the idea of immunity for the presidency. At bottom, the Court has invented a dangerous doctrine that finds no foundation in the Constitution and is antithetical to the principles of democracy.

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