February 26, 2020

The Divine Right of Kings

Guest Column
By Isiah Smith | Jan. 19, 2019

Imagine this: A long black limousine floats to the edge of the sidewalk curb on Fifth Avenue and parks between the Cartier and Rolex watch shops.  Shoppers on “The Avenue” are used to seeing such high-end shoppers being driven to the most expensive shops in New York.  Usually they ignore them, as one would ignore pesky flies and unsavory panhandlers. This black monster is strange, however, even for New Yorkers grown numb to the daily displays of wealth in this overcrowded Mecca to the rich.

The crowd gathers two-deep and watches as the driver of the black monster exits the front seat, opens the oversized backseat, and a tall man with orange skin, an imperial air, and bleached blond-ish hair emerges, wearing black patent leather shoes and a navy blue suit whose jacket is cut long, ending slightly above the knees. It’s the type of wide-lapel suit with cuffed and pleated trousers nobody has seen on these streets Nixon resigned on August 9, 1974.

The crowd watches in horror as the fake blond with the bulldog face and pouty lips reaches into the waistband of his baggy suit trousers, pulls out a large gun, takes careful aim, and shoots an elderly man, pointblank, in the head. Calmly and coldly, he places the gun back into his waistband, reenters the black monster, rolls up the window, and orders the driver to proceed.

Imagine then that a small, stooped grandmother with her three little grandchildren in tow grabs the arm of one of New York’s finest and demands, “Aren’t you going to do something? Arrest that man — he just shot and killed an innocent man on Fifth Avenue in broad daylight, in full view of hundreds of New Yorkers.  Arrest that man!”

“Sorry, Ma’am, there’s nothing we can do. He’s the president of the United States; he’s immune from prosecution.  He can’t be arrested or indicted for his crimes while he’s in office.”

The other citizens, incredulous and downcast, sober and sorrowful, walk away, powerless against the machines of the imperial president.

As if in practiced unison they say, “What can we do? We are just powerless citizens who are held to account, but who have no power to hold our leaders to account.  We are but dust in the wind, fallen angels controlled by the whims, wishes and caprices of those who hold the power. If we run a traffic light, park too long in a forbidden spot, forget to pay our taxes, or fail to pay our bills, we are punished and imprisoned. But he can shoot an innocent citizen in full daylight on the busiest street in America, and he gets to walk away and lead our country as if nothing happened. He can violate any law, commit any sin, and escape punishment? That’s a damn shame!”

Sounds far-fetched? Implausible? Could never happen?

Don’t be so sure.

In a legal memorandum dated Oct. 16, 2000, the Legal Counsel Office of the Department of Justice (DOJ) concluded that a sitting president could not be indicted:

“Given the unique powers granted to and obligations imposed upon the President, we think it is clear that a sitting President may not constitutionally be imprisoned. The physical confinement of the chief executive following a valid conviction
would indisputably preclude the executive branch from performing its constitutionally assigned functions. As Joseph Story wrote: ‘The president cannot, therefore, be liable to arrest, imprisonment, or detention, while he is in the discharge of the duties of his office  . . .  .’” — Opinions of the Office of Legal Counsel in Volume 24

As Charles Dickens wrote in “Oliver Twist”: “If the law supposes that," said Mr. Bumble, squeezing his hat emphatically in both hands, "the law is a ass — a idiot. If that's the eye of the law, the law is a bachelor; and the worst I wish the law is, that his eye may be opened by experience — by experience."

Adomnan of Iona (born 628 AD), one of the earliest Christian proponents of kings ruling by divine right, could have written the above memorandum. This view evolved into a political doctrine in defense of monarchical absolutism, which asserted that kings derived their authority from God and could not therefore be held accountable for their actions by any earthly authority such as the Senate of the Roman Republic, or later, the British Parliament.

Perhaps that explains why modern evangelical Christians such as Jerry Falwell, Jr., cling to 45, despite his obvious venality, corrupt nature, amorality, dishonesty, and general odiousness.

The divine right doctrine virtually disappeared from English politics after the Glorious Revolution (aka the Revolution of 1688, when King James II of England was overthrown).The American Revolution (1775-83), the French Revolution (1789) and the Napoleonic wars further deprived the doctrine of most of its remaining credibility.
Until now.

As we watch the brazen blather of “absolute right” to close the government, declare a childish state of emergency, or to do pretty much anything his compromised mind conceives, we would do well to remember the words of David Hume, Scottish enlightenment philosopher, historian, economist, and essayist:“It is seldom that liberty of any kind is lost all at once.”

We shall see.

Isiah Smith Jr. is a former newspaper columnist for the Miami Times. He worked as a psychotherapist before attending the University of Miami Law School, where he also received a master’s degree in psychology. In December 2013, he retired from the Department of Energy’s Office of General Counsel, where he served as a deputy assistant general counsel for administrative litigation and information law. Isiah lives in Traverse City with his wife, Marlene.


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