Plaintive strains of a slow and somber piano rendering of “The Star-Spangled Banner” and “America the Beautiful” came across my radio the morning of the 4th of July, and as they did I found myself welling up with tears – not tears of patriotic pride for my country, but of deep sorrow for what it has become, how it has lost its way.
My state of mourning followed upon the Supreme Court’s decisions a few days earlier in Trump v. United States and Chevron v. Natural Resources Defense Council, simultaneously giving the Presidency the powers of a monarchy while stripping federal agencies of their executive function and handing it to the multiple judiciaries around the country. The latter will create a mess of conflicting regulations on everything ranging from the environment to health care. I privately suspect the conservative majority of the Supreme Court was trying to open the way for mifepristone to be banned in a number of states by creating the possibility for FDA rulings by to be overturned by judges in certain judicial districts.
But it is the former decision, Trump v. United States, that is of even greater concern, and where my despair is centered. The question before the Court -- triggered by four federal grand jury indictments against the former president for conspiring to overturn the 2020 election by knowingly spreading false claims of election fraud designed to obstruct the collection, counting, and certifying of election results -- was whether or not Trump is immune from prosecution because at the time he committed these unlawful acts he was the President. The Court’s answer in a word -- yes. Because he was President at the time, he’s immune. Here are the Court’s official words, from the opinion written by Chief Justice John Roberts:
“Held: Under our constitutional structure of separated powers, the nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority. And he is entitled to at least presumptive immunity from prosecution for all his official acts. There is no immunity for unofficial acts.”[i]
In other words, the President can do no wrong. In other words, the President is above the law. In other words, the President is a law unto himself. As Justice Jackson wrote in her dissent: “In its purest form, the concept of immunity boils down to a maxim— ‘ [t]he King can do no wrong.” And as Justice Sotomayor said in her impassioned dissent, the Court has in this way made the President the King. Quoting her here: “The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.”
However, Justice Jackson is clear in rebuking the Court for granting the Presidency such immunity, arguing that such a notion was “firmly rejected at the birth of [our] Republic."[ii] For justices who claim to be “originalists” – those who base their judicial rulings in the understandings of the matter at the time of the creation of the legal document, in this case the US Constitution – their ruling is a far cry from the intent of those who framed the Constitution. To understand that intent one needs only to read The Federalist Papers.[iii] Alexander Hamilton, in his commentary on the thought behind Article II of the Constitution which outlines the powers of the Executive branch of the government, is quite clear that the Framers intended to grant no such immunity to the President. To the contrary, it absolutely states that in contrast to being above the law, as is a king, the President is liable for criminal actions:
The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law. The person of the king of Great Britain is sacred and inviolable; there is no constitutional tribunal to which he is amenable; no punishment to which he can be subjected without involving the crisis of a national revolution. [iv]
It was exactly this inviolability — this ability the sovereign under the notion of divine right to be answerable to no one and to commit acts with impunity — against which the Revolution was fought.
So on this day celebrating the overthrow of the rule of divine right and absolute power, and instituting popular sovereignty in their place, I find no reason to celebrate, for the Supreme Court has declared all of that null and void. It has laid the foundation for the government of the United States to become authoritarian, based on the whims and actions of one person, accountable to none.
In one fell swoop the Court greatly increased the power of the Presidency and the Courts – by granting the Court the power to decide what acts of the President are “official” and which are not – and diminished the power of the only branch of the federal government that is democratically elected by the people – the Congress.[v] As Justice Jackson noted in her dissent, “the Court has unilaterally altered the balance of power between the three coordinate branches of our Government as it relates to the Rule of Law, aggrandizing power in the Judiciary and the Executive, to the detriment of Congress,” adding that “whatever additional power the majority's new Presidential accountability model gives to the Presidency, it gives doubly to the Court itself,” for the Court now is the determining body as to what is or is not an “official act.”
This ruling becomes even more chilling given the real possibility of Trump -- a self-proclaimed admirer of Russia’s Putin and authoritarian rule in general -- returning to the office of the President. One need only look at the plan by the Heritage Foundation, called the “2025 Project,” to see what sweeping changes Trump and a faction of conservatives have planned to put in place if Trump is elected. Among the key provisions are: the reinstatement of an executive order known as “Section F” that would re-classify most federal workers as being “at-will,” enabling Trump to fire any federal worker who didn’t toe the party line; the installation of Christian Nationalism[vi] – putting fundamentalist Christian beliefs at the center of national policy; attacking reproductive rights and health even further; reshaping the Department of Justice better to serve the whims of the President; severely restricting even legal immigration; dismantling LGBTQ rights, the Department of Education, and any mention of Diversity, Equity, and Inclusion in federal departments and programs; shrinking the EPA, scaling back federal support for renewable energy, and increasing oil production – basically declaring death to the planet; and more. The aims of the right-wing backers of Trump amount to setting up the conditions for autocratic rule to implement their destructive agenda, and the Supreme Court just gave them the final power they needed to do just that should Trump be elected. As Justice Sotomayor put it so forcefully – In the event that the President “orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.”
I’ve never been a big fan of the original US Constitution, written as it was primarily to protect the interests and property of select propertied white men and to prohibit the representation of the majority of people in the country. It has taken multiple amendments and Acts of Congress to begin to redress the inequities and exclusions of the original document, but at least it had this – that every elected and appointed government official was subject to the law of the land. The Supreme Court decision in Trump v. United States has now eradicated even that.
As I walked along the shores of Lake Superior that 4th of July morning, these lines from “America the Beautiful” kept running through my mind:
America! America!
God mend thine ev'ry flaw,
Confirm thy soul in self-control,
Thy liberty in law.
Would that we were a nation of self -control. It sadly seems we are so out of control in this moment. And the liberty that is at least somewhat guaranteed, at least in theory, by all citizens being subject to the law regardless of rank or office has now been undone by the very institution charged with insuring it.
What gives me hope is that so many are outraged by this Supreme Court’s decision and are giving voice to their indignation. The people do not want a government unconstrained by law. Perhaps the people at large will still be a force stronger than the strong arm of a few privileged men in seats of power. At least the people are still able to see what is obvious – that the Supreme Court’s decision is wrong, and dangerous. We haven’t devolved to the point where we can’t even see that. That at least keeps the door open to preventing the rise of the fascism and authoritarian government that this decision portends.
What gives me hope is young people. It has taken me days to fashion this piece. It has been far too overwhelming to me to put into words, knowing that I could never do justice to the enormity of what has transpired in these decisions of the Court. And then yesterday I heard my son, younger than half my age, put into music all that I had wanted to put into words.
In so doing, he reminded me of the power of music and the arts to keep alive the dream of “liberty and justice for all,” to protest their threatened disappearance, and to inspire the rebellious spirit that breathes life into their constant arising and sustenance in the world, and this too gives me hope. I leave you as I began, with poignant renderings of “The Star-Spangled Banner,” this time my son’s. To listen, please click on the “Learn More” link below. The piece and the introduction to it begin at the 25:13 mark. His tender and moving rendition of “This Land Is Your Land” begins at the 57:06 mark.
Sources
Hamilton, Alexander, Madison, James, & Jay, John. The Federalist: or the New Constitution. Norwalk, CT: Heritage Press, 1973.
TRUMP v. UNITED STATES CERTIORARI TO THE UNITED STATESCOURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 23-939. Argued April 25, 2024-Decided July 1, 2024
[i] Trump v. United States, CERTIORARI TO THE UNITED STATESCOURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 23-939 (2024).
[ii] In doing so, she cited Clinton v. Jones, 520 U. S. 681, 697, n. 24 (1997) (quoting 1 W. Blackstone, Commentaries * 246 (Blackstone)); see United States v. Burr, 25 F. Cas. 30, 34 (No. 14,692d) (CC Va. 1807); as well as United States v. Lee -- "No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it." United States v. Lee, 106 U. S. 196, 220 (1882).
[iii] The Federalist Papers is a collection of 85 documents written by three of the framers of the US Constitution – James Madison, John Jay, and Alexander Hamilton – and published in New York newspapers to persuade the people of New York to adopt the new constitution. It is considered to be the main authority regarding the thinking of the framers who wrote the original version of the Constitution.
[iv] Federalist Paper #69. Emphasis mine.
[v] Even saying the Congress is democratically elected is a stretch since the Senate with two representatives from each state regardless of population effectively grants far less electoral power to those living in populous states and more to those in more rural states. Plus, the fact that US elections are based on district elections rather than proportional representation makes the way we choose Congressional representatives far less democratic. And with the US Supreme Court gutting the 1965 Voting Rights Act in Shelby County v. Holder 570 U.S. 529 (2013), many are still denied their right to vote. The President is still elected by the electoral college, not by the popular vote, a mechanism that in two of the three of the most recent elections prevented the candidates duly elected to be president by the popular vote – Al Gore and Hillary Clinton – from taking office, and allowed the minority candidates – George W. Bush and Donald Trump to assume the presidency.
[vi] For more information on Christian Nationalism, see What is Christian nationalism and why it raises concerns about threats to democracy | PBS News