A Brilliant Rendering of Presidential Power

The Constitution and the President

In the great debate over the Constitution, the powers of the president were a focal point of controversy. Antifederalists passionately objected to the entire federal system, seeing it as antithetical to republican freedom. The inability of the government established under the Articles of Confederation to lead a competent foreign policy moved the Framers. But many citizens of the thirteen former colonies who had paid a great cost to preserve their liberty from the concentrated power of the British Crown and Parliament feared that, in the presidency, we were creating a new tyrant and betraying the Revolution.

Here’s an extract from a letter in a Philadelphia newspaper from 1787, published over a pseudonym:

The election of a King whether it be in America or Poland, will be a scene of horror and confusion; and I am perfectly serious when I declare that, as a friend to my country, I shall despair of any happiness in the United States until this office is either reduced to a lower pitch of power…. We are certainly about giving our president too much or too little; and in the course of less than twenty years we shall find that we have given him enough to enable him to take all.

The more things change, the more they stay the same. The well-considered opinion of the Supreme Court in the just-decided Trump v. United States deferred to law and the Constitution in establishing both strong powers and limits to those powers in America’s Chief Executive. The modern heirs to the Antifederalists have predictably unleashed the charge that the Court has sanctioned the establishment of a tyrannical king.

Unlike the author of the above letter, though, they are not making a reasoned response to the Trump decision, but either in ignorance or with malice, build a straw dog which enables them to sustain the extreme charges of enabling tyranny against a sober and sane set of rules that set out both the scope and the limitations of one of the considerable powers the Constitution invested in the presidency. (READ MORE from Shmuel Klatzkin: Tyrants Don’t Get Humor)

Writing for the two-thirds majority, Chief Justice Roberts sets out a three-part categorization by which to analyze any acts of a president and determine whether immunity from criminal prosecution applies. To secure the powers of the administrative branch of government as co-equal, the president is given absolute immunity in his core constitutional functions, just as Congress is immune in its functions and the Supreme Court in its.

Acting unofficially, though, the president has no more immunity than any citizen. And there is a grey area in which, when it is not clear, the president is given presumptive immunity which can be overcome given evidence. Anything less than this would make the Executive Branch less than equal to the other two.

Under English law tradition, the absolute immunity that applies to a sovereignty devolves with some limitations on those who exercise its offices. Parliament vigorously asserted its immunity from prosecution in their deliberations and debates and in their travels to and from its sessions. America’s constitution establishes similar immunities for members of Congress, and to a lesser degree, local authorities enjoy some immunity from lawsuits when they lawfully discharge their duties.

Wokeists don’t recognize precedent and have sought often to repeal such immunities in the heady high-water days in the summer of 2020, when CHAZ seemed to be the driving ideal of the Jacobin left. But those who gained office by catering to the wokeists’ votes have been as zealous about their prerogatives as any of those they fought. So, it is no surprise that, though they have loudly complained about the legal action they imagine Republicans will take against them on regaining power, and fulminate loudly about the death of democracy, they are furious when immunities of any sort have been upheld in Trump. Woekists aren’t big on principle.

 The Trump decision, though, was carefully crafted by Roberts to be about the constitutional issue as it will apply to any president. It rejects the Democrats demand that the only issue before the court was the uniquely despicable character of the man they allege Trump to be. In sticking to principle, the Court has provided a precedent for how the law can negotiate the unexplored territory opened by this shameful violation of the 235-year norm of refraining from determining the presidency through criminal prosecution.

In The Federalist, Alexander Hamilton fought for the balanced but strong set of powers reserved for the Constitution’s president against the misrepresentation of those seemingly as impatient with principle and balance as today’s angry opponents of the Roberts majority. He writes in The Federalist 67:

There is hardly any part of the system which could have been attended with greater difficulty in the arrangement of it than this; and there is, perhaps, none which has been inveighed against with less candor or criticised with less judgment.

Here the writers against the Constitution seem to have taken pains to signal their talent of misrepresentation. Calculating upon the aversion of the people to monarchy, they have endeavored to enlist all their jealousies and apprehensions in opposition to the intended President of the United States; not merely as the embryo, but as the full-grown progeny, of that detested parent. To establish the pretended affinity, they have not scrupled to draw resources even from the regions of fiction.

How the Woke See the President

Hamilton might have been writing about the fantasy and misrepresentation of Justice Sotomayor’s dissent in Trump. Few are surprised one appointed for diversity rather than merit would have little mastery or use of legal precedent. But in this opinion, she is contemptuous of even the judge’s duty to read the opinion she objects to carefully and honestly. Writing as if she were a party chair rather than a jurist, she pretends as if the majority had awarded presidents complete and total immunity on all things.

Ignoring the unprecedented turn to lawfare to dispose of a rival for power, she pretends as if all was well and unchanged until the majority leapt into the fray and crafted an illicit revision favoring Trump, and pretending that what they carefully laid out would allow the president immunity from, say, hiring hitmen to dispose of his political opponents.

Such a straw-man argument would have gotten me a reprimand from my seventh-grade teacher. (Perhaps the Honorable Justice might want to read the classic dissents of Brandeis and Holmes, in which they read and responded to what the other justices actually said and crafted powerful arguments that commanded the respect of their peers and of future generations.)

At least it has in common, though, what the majority is shielding our country against, namely, using the law to intervene in political issues, as is exactly the crux of what is being done in the various Trump prosecutions, and about which Sotomayor and Jackson are silent.

It is not surprising that the same people who passed us the Russian collusion lie, the Hunter Biden laptop lie, and the lie that all evidence of Biden’s cognitive decline were cheap fakes are trying to make a go of Sotomayor’s own brand of less-than-the-full-truth. (READ MORE: All Are Bound by the Law)

What may surprise us, post-debate, is that many more people have become aware of how much they have been lied to. Most people don’t want to be fooled again.

As for we who recognized the lies a long time ago, let us not turn to cynicism. Sometimes it takes a long time for truth to out. But its power is sure, and we must stand the tests that befall us in truth’s service, trusting in that its power will always manifest in the end.

Let’s welcome in those folks who only now are beginning to realize how corrupt our American narrative had become. Let’s keep them in by holding fast to truth and honest discussion, even as we engage passionately, inspired by our faith.

The Framers of the Constitution placed their faith in God at work in the People. It is the People who are sovereign, and only they, as a whole, have absolute sovereignty under the law. They have chosen to invest a large part of that sovereignty in the powers of the Chief Executive, and only as a whole can it be revoked — not a handful of people in locations hand-picked for their political hostility to a political figure.

The People’s sovereignty in turn devolves from God. And thus, as Adams reminded us, “Our constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”

The Court’s majority preserved our Constitution. Now it is up to we the people to make ourselves adequate to its magnificent vision.

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