The Trew Law of Free Democracies?

by ERIC JOHNSON-DEBAUFRE

In England during the early years of the 17th century, an illuminating and important debate occurred over what, if any, were the limits of monarchical authority. The crux of the debate was this: did the power and authority of the monarchy supersede the law or was it subject to the law? The chief representative of the former position was James I, while his opponent, Sir Edward Coke, defended the latter.

As early as 1598-and before he ever acceded to the English throne-James had articulated the position that "the King is above the law, as both the author and giver of strength thereto," circulating his opinions in an anonymous work titled The Trew Law of Free Monarchies that everyone nevertheless knew to be the work of James’s own hand. Perhaps aware of the possible opposition that his position might occasion, James was careful to state that "yet a good king will not only delight to rule his subjects by the law, but even will conform himself in his own actions thereunto." Notwithstanding James’s stipulation that a good monarch will conform his behavior to the law, what is clear in this position is that monarchical adherence to law represents, at best, a generous indulgence rather than a binding obligation.

It is no surprise, therefore, to learn that James’s position clashed with the views of some parliamentarians when he ascended to the throne in 1603. The man who would become his chief opponent, Sir Edward Coke, had been the attorney general under Elizabeth I and seems, in some respects, an unlikely choice to become the king’s adversary. Under Elizabeth, Coke had defended the traditional privileges and prerogatives of monarchy, making his transformation as champion of the primacy of law over monarchy appear all the more astonishing. It is Coke, let us remember, who argued that the principals enshrined in Magna Carta extended to all English subjects and not merely to the nobility, famously declaring that "Magna Carta is such a fellow that he will have no sovereign." In opposition to James’s claims that adherence to law rested on the monarch’s willful indulgence, Coke staked out his position that the monarch, while subject to no human person, was nevertheless subject to the law.

It is one measure of the strangeness of the present time that the James-Coke debate appears both illustrative and oddly prescient. Who could have imagined that almost exactly 400 years later the United States would be witness to the reprisal of such a debate? Of course the eeriness of the similarities between past and present should not blind us to their striking differences. Perhaps the most important difference is this: as holder of the top legal office of his day, Sir Edward Coke set himself in opposition to unregulated prerogatives of monarchy unlike his present-day counterpart, Attorney General Alberto Gonzales. Witness, for example, Gonzales’ recent remarks to CNN’s Soledad O’Brien regarding the revelation that the administration engaged in secret wiretapping: "There were many people, many lawyers within the administration who advised the president that he had an inherent authority as commander in chief under the Constitution to engage in these kind of signals, intelligence of our enemy." If Gonzales is to be believed, the U.S. Constitution grants the president "inherent authority" to act in an unsupervised and unregulated manner. If this were really the case, why did President Carter ever permit passage of the Foreign Intelligence Surveillance Act, since the existence of such an act could only serve to restrict the president’s "inherent authority" under the Constitution to engage in secret monitoring of either U.S. citizens or foreign powers?

That the Bush administration and its cronies have taken a position remarkably like James’s defense of monarchical absolutism, while appalling and ironic given the country’s history, is not altogether surprising. What is more surprising is the extent to which the position of Attorney General of the United States, when confronted with the whims and dictates of an increasingly renegade White House bent on reshaping the globe, has become merely a cipher if not, in fact, a rubber stamp. In dark days such as these one longs for the sane voice of an Edward Coke, someone to defend and restore the proper relationship of law to executive authority. And in the absence of a Coke, then perhaps for a more radical recapitulation of the events of 1642.

The title is a reference to James I’s The Trew Law of Free Monarchies, arguably the most vigorous defense of monarchical absolutism made by any English king.

ERIC JOHNSON-DEBAUFRE is a doctoral candidate in English at Boston University and an avid reader of Counterpunch. He can be reached at ericjd@optonline.net.

 

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