For the English speaking democracies, the rule of law can be said to begin roughly 800 years ago, when a group of unelected nobles extracted or extorted from King John his agreement to limit his use of arbitrary powers.  For the first time in England, the King agreed that he was not above the law.

The Magna Carta issued by King John took the first steps toward establishing the criminal justice system we know today.  Consider Clauses 33, 39 & 40:

Justice requires due process; here are the beginnings of the legal principle ‘habeas corpus’.  The King commits to respect the rule of law – and not to sell justice.

The unelected nobles were the precursor of Parliament, which originally began as an assembly of Lords.  By 1300, Parliament was at least partially representative, but unelected.

Kings being Kings, this agreement was “more honored in the breach than the observance”.  It came to a head (and the loss thereof) 435 years later when Charles I insisted on his kingly rights over Parliament, causing a civil war, its loss, and his eventual execution.  The restoration of the monarchy was bumpy, with one monarch forced to flee.  Eventually, 1n 1689, Parliament allowed the return of a monarch under conditions specified in the English Bill of Rights.

Here is Parliament’s ruling to dismiss the rights of kings:

This represents an extraordinarily clear statement that the monarch has no authority over the application of the laws.  The King is not above the law.

It is this principle which has been challenged by the US Supreme Court.  The Court argues that the text of the US Constitution is quite clear that there are no limits on Presidential power with respect to his core constitutional functions under Article II. 

What that frees the President to do is extraordinary.  Within his authority is the Justice Department, envisioned as independent but now clearly within Presidential authority to direct.  As the President has authority of of the investigative and regulatory agencies, he has unchallenged authority over the FBI (for example).  It has been argued that there would have been no criminal case against former President Nixon if these Supreme Court rules had applied at the time of his resignation and pardon.

Consider the possibility that the Supreme Court has fallen into a textual trap.  They have taken a Literalist interpretation of the US Constitution, far more narrow and shallow than even Originalism.  They argue that the President has certain exclusive powers; therefore there are no limits on their use.  Originalist thinking – which itself should be challenged – refers to the (Constitutional) Framers’ intentions when drafting.  The education and experience of the Framers would clearly include awareness of the constitutional history of England, and the gradual limitation on the powers and rights of the monarch.  They would have been well aware of the English Bill of Rights, of Magna Carta.  Saying that the President has unchallengeable authority for constitutional acts totally contradicts the political and moral intentions of those who wrote the Declaration of Independence:

If “all men are created equal”, then no one is above the law.

So what were they thinking?  Could it be that they are so shallow and myopic that they could not see beyond the literal wording of the Constitution, could not understand that the US Constitution is an edifice erected on centuries of constitutional history?  Could it be instead pernicious, that the Judges see a better future for their authority and themselves if the President has such powers – so long as they behave?  Thus far, no explanations are persuasive.

Who could have thought that such a core constitutional principle – no one is above the law – could die such an untimely death?  Today, the US Supreme Court decision conflicts with the UN Universal Declaration of Human Rights.  But that same decision also conflicts with history: Thomas Paine’s 1792 Rights of Man.