Editor’s (admin’s) note. I’m posting here a 600-word guest column I submitted to the State Journal-Register a week ago. I thought it was only fair to give them a week to consider it for publication. But the content is stale now (at least for newspaper purposes), and it’s not altogether clear that the J-R is still running a locally-generated editorial page since the latest round of layoffs and buyouts. It’s been a week now, and the column appears below as submitted Feb. 14 — but with hyperlinks added. My take on it may be stale now, but the principle has been around since at least 1268. Illustration above is courtesy of the Victorian Illustrated Shakespeare Archive, a data base compiled by Michael John Goodman, a postdoc at Cardiff University.
As the impeachment trial of ex-President Donald Trump lurched to its foreordained conclusion, an observation four years ago by U.S. Supreme Court-watcher Dahlia Lithwick seems eerily prophetic.
“For those of us who believe … in the basic tenets of constitutional democracy, in respect for the law, and the courts, and for neutral processes, Trump is the end of that line,” she wrote for the online magazine Slate just after he won the 2016 election.
Lithwick has a J.D. from Stanford, but it didn’t take a lawyer to be alarmed. I was alarmed too. And I’m still alarmed since the Senate came up 10 votes shy of the two-thirds majority needed to convict Trump of inciting the Jan. 6 insurrection at the U.S. Capitol.
My knowledge of jurisprudence comes as a courthouse reporter, covering murder trials and election contests. And my degree was in English, not law, but my dissertation was a study of “The Idea of Limited Government in English History Plays During the Reign of Elizabeth I, 1558-1603.” But I wrote it at the time of the Watergate hearings, and it was the only dissertation in the English Department that year with a news peg.
My research was on Shakespeare, but it was grounded in a 13th-century legal scholar Henry de Bracton, who said, “the king is under God and under the law, because the law makes the king … for there is no rex (king) where will rules rather than lex (law).”
Behind the wordplay about “lex” and “rex” in medieval dog Latin is a basic principle of the Anglo-American system of law and government. I think it may be the basic principle. And it’s the principle Trump violated.
In Henry de Bracton’s day, it meant the king wasn’t just the baron with the biggest army. The succession was governed instead by legal process. For without those laws, there could be no orderly succession.
In Shakespeare’s world, it means Prince Hal has to reject his old drinking buddy Falstaff when he becomes king in Henry IV, Part 2. “I know thee not, old man,” he says, and walks offstage with the Lord Chief Justice.
In our day, it means the president of the United States is chosen and executive power transferred by the orderly processes of law, because without those processes – where will rules instead of law – there is no duly constituted head of state.
Now we find ourselves in exactly the pickle that Lithwick predicted. The Senate vote was bipartisan – seven Republicans stood tall and voted to convict – but Trump’s action and the Senate’s inaction put the foundations of our system of government at risk.
So what do we do now? It doesn’t have the moral clarity of Shakespeare, but Lithwick had an idea back in 2016.
“Lawyers are by definition small-c conservative, incrementalist, and cautious,” she wrote. “We don’t do revolution if a strongly worded footnote would suffice. We believe in facts. We believe in neutral rules and principles of fairness. We believe in judicial independence.”
Admittedly, it doesn’t sound like much. But maybe the orderly processes of law are still our best hope.
And for the rest of us, maybe it’s time to have our own footnotes locked, loaded and ready to fire. We thought we could rest once the Nov. 3 election was over, and then we thought we could rest if Trump was convicted and disqualified from running again. Now it looks like the contest is just beginning.
Peter Ellertsen, of Springfield, is a retired professor of English and mass communications at Benedictine University Springfield.