The Rule of Law and the Temptation of Kings

July 22, 2007

Universalist Unitarian Church of Santa Fe

The United States is currently engaged in a great imperial adventure. Our president is acting as if he had unconstrained executive powers, powers so comprehensive that they override any authority given by the Constitution to the legislative branch, so comprehensive that he may exercise them in secret without legislative oversight, so plenary that he may override existing law, domestic and international, and so natural that he need only answer to God. This arrogation of powers is justified by a “war” which he has unilaterally declared, a “war” with no identifiable enemy except anyone who resists US imperialism and therefore no end. His war is no different from the dynastic wars of the Middle Ages, like that of kings of France and England, who fought back and forth over Languedoc and Normandy and Acquataine throughout the 14th century. When one man in this manner goes beyond the boundaries of modern law and moves us backward toward autocracy and tyranny his action raises not only political and constitutional issues, but issues that profoundly affect the morale and the morality of a whole nation. Imperialism affects the ethics of a nation, fosters an appetite for revenge: Against anyone, anytime, anywhere.

There is another American story that is not the imperial story and that was not fabricated in the neo-con philosophy of imperial leadership. This is the story of our long slow development of democratic institutions, the eking out of a consultative legislative branch and independent courts from the hard soil of absolute royal priviliege. This is the story of a growing regard—during a period of about 500 years—for what is not military or bluster but what is civil or decent, as in the famous words of the Declaration of Independence, a decent regard for the opinion of mankind. This is the story of the law above the king. Now we have come to a crossroads, a choice of stories.

In 13th Century England, King John sought to establish his own view of religion and moral authority by appointing his own minions to high church offices. He meddled with property rights and inheritances of others, to the benefit of the crown. He made war wherever he chose, unilaterally, to the benefit of the crown. In 1204, he marched to France and was defeated. Nearly broke, he issued a decree to raise taxes to re-fill the royal coffers. Squires and shopkeepers of England reacted angrily. Robin Hood took to the forest. In 1214, the king lost another war in France. The lords and barons of England now demanded that the incessant flow of blood be stopped and that royal power be curbed.

On the field at Runnymede in 1215, king and barons met and democracy was born out of common exhaustion with war. The institutions and provisions of the Magna Carta were intended to provide a non-violent solution to war’s seemingly endless continuation. At its origins, democracy was an alternative to war; a substitution, not war’s extension. The idea that war can advance democracy in either Iraq or Afghanistan is therefore a contradiction to the non-violent principle upon which the institution was founded.

The scene at Runnymede must have been grand. John agreed to sign a document, in the open, out on a field. He was surrounded by pike men and knights assembled to reinforce the threat of continued war. The Archbishop of Canterbury was present, so too were the bishops of Lincoln, of Worcester, of Coventry, the great earl of Pembroke, the earl of Arundel, holders of broad lands and marvelous castles. The introductory paragraph of the Magna Carta names them all. Then begins a long list of promises from the sovereign king to his liege subjects. “Liege” means that they are loyal to him and “sovereign” that he should have supreme authority. The document that follows, however, turns those concepts on their heads. The Magna Carta makes the loyalty of the people dependent upon the king’s correct use of his royal power. If today, a president is not held to the correct use of his power, he takes us back 800 years.

In paragraph number one John grants

“… to all freemen of our kingdom, for us and our heirs for ever, all the underwritten liberties, to be had and held by them and their heirs, of us and our heirs for ever.”

Freemen shall be free “forever.” That includes us.

The king grants the noble lords their right to inherit lands without excessive taxation. Then he grants rights to minor heirs and to widows. Then the king agrees—probably fully conscious of the emblazoned knights assembled in battle armor in the green fields around him—the principle of parliaments:

“…. we will cause to be summoned the archbishops, bishops, abbots, earls and greater barons…and will moreover cause to be summoned generally, through our sheriffs and bailiffs all others who [will be subject to a tax]… and in all letters of such summons we will specify the reason of the summons.”

Not only will those who must bear the tax be summoned to a common counsel but the summons shall inform them of the reasons for the assembly, thus to give notice in advance and time to prepare to all who might be adversely affected. The king promises to give them a full 40 days notice and they will come to a meeting, to counsel, to reason with him concerning taxation.

Courts of law shall after this time not wander about trailing after the king but rather be convened in a fixed place where suitors who need relief are themselves located. Courts will be accessible by rule—not by the grace of the king—as a requirement of justice independent of royal favor. Cases concerning land shall be convened only in those counties where the land is situated adding to the reliability of the evidence, implying that evidence might even trump the whims of the king. No one shall be imprisoned or lose his land or be exiled or in any way destroyed … “except by the lawful judgment of his peers or by the law of the land.” [Para. 39].

“To no one will we sell, to no one will we refuse or delay, right or justice.” [Para. 40] “We will appoint as justices, constables, sheriffs, or bailiffs only such as know the law of the realm and mean to observe it well.” [Para. 45.]

The confrontation on that field all those years ago was the same as the confrontation which ought to, but has not yet, occurred between the Congress and the president today. The principle was to be from that day forward that law trumps the king’s will. The Congress has not yet recalled that principle in the case of our current president and vice president.

The Magna Carta states that Illegal imprisonment is to be curtailed. Certain hostages who have been taken in the civil wars are to be released. Other evildoers, associates of the king, are to be banished from the kingdom. Castles wrongfully seized by the king or his brother (Richard the Lion Heart) or his father Henry II are to be returned to their rightful owners. John concludes:

[After years of] “ill will, hatreds, and bitterness that have arisen between us and our men, clergy and lay, from the date of the quarrel, we have completely remitted and pardoned every one.”

All these promises were to be enforced by a council of 25 barons and these enforcers were to be given allegiance similar to that of the king. Power was from that day forward to be shared. The 25 barons were to be replaced when they die.

Wherefore it is our will, and we firmly enjoin, … that the men in our kingdom have and hold all the aforesaid liberties, rights and concessions, well and peaceably, freely and quietly, fully and wholly, for themselves and their heirs, of us and our heirs, in all respects and in all places for ever, as is aforesaid.

Within that remarkable first list of limitations of royal power were the seeds of today’s requirement for fair notice, for equal access to courts, for trial by peers, for political judgments after consultation, taxation only after discussion, and above all, that the law shall be above the whims of even the sovereign king. Had there been no Magna Carta there likely would have been no United States Constitution. With George W. Bush there is need for a Magna Carta again.

Three months after he signed the document King John renounced it. He persuaded the Pope to also renounce the “shameful” provisions for the council of 25 barons. No restraint of the royal will would be tolerated. John went back to war. He died fighting the next year.

Three centuries later, as the abuses of the Stuart kings spread, turmoil and rebellion once again spread throughout England. In 1628, resisting an autocratic king Charles I, Parliament passed a famous Petition of Right: The king may not imprison anyone except for violations of law. Habeas corpus may not be denied. A person may not be kept indefinitely in jail, even if it is the king who put him there. Finally, the king may not tax upon his own authority, alone.

King Charles I, like George W. Bush, argued that he could not be bound by Parliament. He dismissed parliament and sent them home for seven years, governing, as Mr. Bush has now attempted more or less for six and one half years, solely upon royal prerogative. When, finally, however, he desperately needed money he was forced to reconvene the Parliament. When he did so, royalists and parliamentarians fell into such a struggle that England soon devolved into civil war. As if Donald Rumsfeld and Dick Cheney led one side on behalf of the president and Dennis Kucinich and John Edwards led the other. In 1649, the unfortunate pawn of the royalists, Charles I, lost the war and then lost his head.

Power corrupts, and over and over through the long course of these four centuries monarchs in their desperation had agreed to limitations on their powers only to seek ways to cancel these limitations when they thought themselves strong enough to succeed. King John sought to repeal his Magna Carta concessions only three months after he agreed to them. His attempt cost him his life. By the time of Charles I and James II, 400 years after King John, an arrogant dynasty once again sought to do as they pleased, without limitation of parliament or the law. There is nothing wonderful and exceptional about George W. Bush; he is doing what all kings do.

This is the natural progression to tyranny. Irresistibly, and progressively, autocratic, personal government scours out public compassion and then in turn, breeds divisions within culture, public anger and the absence of public responsibility. The mentality of tyranny is like a climatic condition that settles a cloud over the landscape. The destruction of civility and a legal tradition carries with it the loss of public civility, decency, and tolerance. Tom Delay and Newt Gingrich are famous examples. Republicans unwilling to let Democrats even attend conference committees of the Congress are examples. The absence of a civil condition carries with it the loss of the social capital that is the foundation for democracy and without which democratic process is a meaningless romanticism.

Autocracy and arbitrary enforcement, rewards for the oligarchs and crumbs for the late comers or outsiders, are conditions that breed contempt—not just of citizens for their government—but also, and crucially, between citizens. The effect of tyranny is therefore to strangle cooperation, spawn intolerance and encourage brutality, the opposite of decency. The cost of government which is not civil, or bound by the civil law, is therefore not only in the loss of due process or constitutional assembly, abstractions, say, of the civil code. The loss is far more, and devastatingly, the loss of social cohesion, the loss of social affection or attention to the common good. A lack of a fair legal system and democratic government breeds division, skepticism, suspicion, racism, religious intolerance, and, finally, treachery between and amongst ordinary people. Those who cannot attack the powers at the top, attack each other.

That is the downward spiral with which American proponents of power, privilege and empire are now flirting. As they plow forward deciding to claim as true whatever they wish were true, they play the role of medieval monarchs. When they make war without regard to binding international law, against any nation that they might choose, put people in jail when they choose without benefit of writs or lawyers, suspend habeas corpus, and suspend the Fourth Amendment to the US Constitution they play the role of tyrants. Some ask, “Isn’t it too bad; we are losing the New Deal?” It is now more accurate to ask: “Isn’t it too bad, we are losing 800 years of the most important legal tradition in the history of the planet?”

King James II of England was forced to abdicate the throne in 1688. His successors William and Mary were required to accept as a foundation for their reign a Bill of Rights that included within its provision a bill of particulars of the wrongs of the previous king. In 1689 the parliament stated:

…That the pretended power of dispensing with laws, or the execution of laws, by regal authority, as it hath been assumed and exercised of late, is illegal.

George W. Bush has issued something over 1000 so-called “signing statements” expressing his interpretation of laws of Congress and his intention to abide by such laws only when in accord with his personal interpretation. He, like James II, will not, therefore, submit his authority to that of the parliament/Congress on any point with which he disagrees. Mr. Bush has, further, during the course of several years, elected not to abide by the Foreign Intelligence Surveillance Act, unilaterally ignoring statutory requirements for search warrants or court approval. Further, he has elected to ignore treaties such as the United Nations Charter Article 52 that are, according to Article VI of our Constitution, “the supreme law of the land.” He has openly mocked the requirement under Article 52 that there be a showing of imminent danger before a country acts in self defense. He has committed crimes of aggression. In the course of this aggression by bombing schools, bridges and hospitals, he has committed crimes against humanity. He has, finally, violated the Geneva Conventions to which the United States is also legally bound by authorizing systematic and detailed programs for torture. George W. Bush has qualified himself—not alone by false opinion or policy, but simply by his conduct—for the same treatment as that accorded to James II.

In 1689, Parliament said to James:

… That the commission for erecting the late court of commissioners for ecclesiastical causes, and all other commissions and courts of like nature are illegal and pernicious.

George W. Bush has created special military courts for the prosecution of anyone who might be seized in any manner and declared to be an enemy combatant in the president’s sole discretion. King James II aided his Catholic friends by creating special courts to prosecute suspicious Protestants. George Bush has created special courts to prosecute suspicious Moslems.

The parliament in 1689 also said, as our Congress today is unwilling to say:

… That levying money for or to the use of the crown, by pretence of prerogative, without grant of parliament, for longer time, or in other manner than the same is or shall be granted, is illegal.

Mr. Bush has pursued a war with monies that he did not have. He has accumulated this extraordinary debt while at the same time reducing taxes in such as way as to favor his wealthiest political allies with the net effect that he has saddled his less fortunate citizens with the costs of a war pursued for his own personal and political aggrandizement. Much of the debt for the Iraq war is, further, “off the books”. Massive expenditures therefore remain unaccounted, without adequate bookkeeping. He has, again, qualified himself by his conduct for the same treatment as that given to James II.

At the time of James II’s exile he had also been found to have tampered with free elections to parliament. Parliament declared:

…That election of members of parliament ought to be free.

The White House in 2004 urged states to strip from the election rolls thousands of probable democratic voters in precincts in Florida and Ohio and New Mexico. These thousands were therefore not free to vote at all and the right of the people to express their fair and free judgment about the violations detailed above were thereby rendered ineffective. Our Congress has done nothing to remonstrate for these failures.

The bill of particulars against James II finally contains the following:

… That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted;

Mr. Bush has ordered to be arrested and carried away in the night hundreds of persons within the United States suspected of being complicit in terrorism. He has done this for no other reason and without basis other than their national origin, skin color or religion and held such persons incommunicado indefinitely, for months at a time, without bail, without right to counsel or to communicate with their families. He has also ordered the extraordinary rendition of untold numbers of persons from around the world who, without process of law, have been sent to undisclosed locations for purposes of avoiding our domestic laws prohibiting torture. He has been commander in chief of an army conducting torture of prisoners in Iraq who may or may not have any evidence to justify their retention.

These are the violations for which kings have been removed in times far less advanced than our own. If our civilization is therefore not to regress backwards beyond even those forgotten times, we must cry out that a king by any other name is still a king. As the law once was enforced against King James so too must it from time to time be enforced against kings by the name of George. The grand example of a senate and people who neglected the requirement of vigilance and so then ultimately lost their republic was Rome. We have disposed of one King George already; if we are not to follow Rome’s example, we would be wise to consider another.

After the fall of the Roman Republic more than 1800 years passed before another fully free republic was born. Republics are not easy to come by. They are rather easier to lose because the loss is gradual, like a river eroding its banks, changing course, almost imperceptibly. First there might be the invasion of a country with which we are at peace; then the massive listening and spying on thousands of citizens like you and me; then the prisons innocuously called “detention” centers and then the denial of the right to counsel; then the establishment of special military courts to try whomever the commander in chief may designate as an enemy combatant which may include donors to foundations like you and me; then the dismissal of international law as “quaint;” then the claim that torture is only “extreme pressure;” then the issue of a Presidential National Security Directive #51 establishing the power of the president to take over functions of the executive, the Congress and the Courts in the event of a catastrophic national emergency which is defined, unfortunately, as an “incident” which may occur in any location, anywhere. The dikes of freedom gradually erode. Already, we no longer live on the solid shores of a constitutionally bound republic but find our underpinnings nibbled and washed away by the rivers of a medieval, pre-republican power-mongering autocracy.

When in the course of six years our leaders have conducted themselves in a way that shows a greater affection for power than popular welfare, a greater allegiance to privilege than to equality of opportunity, a greater tendency to tyranny than to the founding ideals of the republic, and when they have even regressed to the style and forms of medieval, personal rule acting more like King John or King James II than George Washington, more like Julius Caesar than Abraham Lincoln, more like Napoleon than Dwight Eisenhower, then it is time for good citizens to awaken. Then it is time to reclaim our American birthright and if our colleagues and fellow citizens are not yet awakened to these dangers, it is, finally, time to remember Paul Revere and ride one by one through the countryside, spreading the message day and night; to sing out, one by one, like Pete Seeger and Peter Paul and Mary; to litigate these crimes, one by one, like Morris Dees of the Southern Poverty Law Center and Anthony Romero of ACLU; to organize our poor, city by city, like Martin Luther King, Jr., and Ralph Abernathy, and to run principled, not-for-sale candidates for office, from Maine to California and from Oregon to Florida. And when all this is done, when we have researched and propagandized and litigated democracy as the great non violent attempt to establish the rule of law over the temptation of kings, when we have sung and danced a future of dignity, decency, and compassion not only for those anonymous giants of exploitative capital and but also for those anonymous humble workers, the homeless, the widowed and the uninsured, when we have stood up for a planet alive with festival and song and not careening toward toxicity and destruction, then we will create a tide against which there can be no presidential dike, no wall or dam of resistance high enough, and the people shall ride into Washington once again.

Thank you.