NO Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the land. We will sell to no man, we will not deny or defer to any man either Justice or Right. — Magna Carta, as amended in 1297 (25 Edward I).
A couple, three days ago, I shared to Facebook a segment from Ari Melber’s show on MS NOW outining steps a newly elected Democratic majority in Congress could take to restore the rule of law, assuming, of course, the Nov. 3 election turns out right.
Something, a vague feeling not quite as strong as a hunch but more than an unrequited longing, told me this might be an inflection point. Maybe, just maybe, our 800-year-old Anglo-American system of law and government might yet survive.
Melber, who is a lawyer (JD, Stanford, 2009) and a member of the New York state bar, seemed to sense the importance of the moment. At the end of the segment, he said (at 10:50):
There are a lot of teachings about history that it can repeat. That it can repeat or rhyme. And it’s mostly written by the winners. Or that history is not even past. Here’s what matters tonight, though, as people make up their minds and go out and decide how to vote next week. In law, history can be something sturdier.
We call it precedent.Many of those laws to counter Nixon and Watergate are still on the books today. Our precedents to thwart those who would undercut our law and democracy or turn us into a dictatorship.
Melber outlined quite a bill of particulars, including but not limited to “greed, from bags of cash to today’s crypto,” and “violent bloodlust from shows of force in Minnesota to Tehran, that virtually no one asked for.” He also suggested specific, constitutional remedies, from shoring up the Watergate-era laws meant to restore a system of checks and balances to impeaching self-proclaimed “War” Secretary Pete Hegseth for war crimes.
Why begin with war crimes? Melber said the evidence is especially strong of Hegseth’s culpability in a “double-tap” missile attack Setp. 2, 2025 on a Venezuelan speedboat suspected of drug trafficking. “Some experts say that striking there after, minutes after the initial strike to go kill people who were visibly waving for help,apparently hanging on the vessel, they were essentially shipwrecked, and that that breaks the Pentagon’s laws of war.” (Hegseth denies the allegations.)
I’m an old mass comms guy, not a lawyer, and I’d say a nice congressional hearing followed by a criminal referral to the Justice Department could accomplish the same purpose as an impeachment hearing, and it wouldn’t have to get 60 votes in the Senate. If Trump’s DOJ sat on it, the referral would still be there as a 2028 campaign issue. I think it would be a useful — and. absolutely necessary — counterpoint to hearings about corruption, “bags of cash” and self-dealing by Trump cronies worldwide,
The important thing, as far as I’m concerned, is to keep the rule of law alive as a political issue.
You see, I’m not only an old mass comms guy. I’m also an old courthouse reporter who studied British constitutional history both in undergraduate and grad school, and capped off his academic career with a doctoral dissertation with the sleep-incuding title “The Idea Limited Government in English History Plays During the Reign of Elizabeth I, 1558-1603.”
I’m not sure whether going on to write newspaper stories on the rough-and-tumble of criminal courts on the exurban fringes of southern Appalachia was going from the sublime to the ridicuous, or the other way around, but I’ve always thought it gave me an unusual perspective for a cub reporter who wasn’t learned in the law.
And maybe, just maybe, it gave me a nose for inflection points. In addition to the first early whiffs of a possible new breeze blowing on Capitol Hill, I can think of two that stand out with regard to the Trump regime’s runaway abuse of the rule of law:
- Nov. 9, 2016, the day after Trump’s election, Supreme Court watcher Dahlia Lithwick of Slate magazine wrote: “Donald Trump has never seen the law as anything beyond another system for self-enrichment. Judges are tools. Laws are malleable. True justice flows in a singular direction: toward him. And Wednesday the entire edifice of the American legal system answers to that vision, unless it opts not to.” She also made an intriguing, and I think prescient, prediction. I’ll get back to it in a minute or two.
- April 15, 2025, when the Trump regime defied habeas corpus to a migrant named Kilmar Abrego Garcia, historian Timothy Snyder noted — correctly, in my opinion — it was a first step to sanctioning state terror. “If we have the law,” Snyder explained, “then violence may not be committed by one person against another on the basis of namecalling or strong feelings. This applies to everyone, above all to the president, whose constitutional function is to enforce the laws.“ (Abrego Garcia’s case is still tied up in court.)
xxx trans xxx What follows is not an exposition of English constiutional law, but my recollection of how I came to understand the rule of law 50 years ago, and why it matters so much to me now. I used another formula in my dissertation, calling it “limited government” or “government limited by law,” but the principle is the same.
When I was finishing my doctoral dissertation on Shakespeare, I also wrote an op ed column for the student paper at UT-Knoxville, and I had a part-time job with an off-campus weekly shopper called The Knox County News. It was during the Watergate scandal in 1973, and I liked to say my academic research had a timely news peg.
That summer as I juggled county budget hearings, watching the Watergate hearings on B&W television, and revising my final draft at night, I was immersed in a world of checks, balances and financial limits on government power, ping-ponging from medieval England to the televised hearings on Capitol Hill, Knoxville city hall and the Knox County courthouse.
In fact, when a 13th-century legal maxim was cited in a Watergate-related 1973 court case in Washington, DC, I cited it in my dissertation, which turned out to be an odd blend of literary criticism and Anglo-American constitutional history. That common law maxim (simplified and modernized a bit) famously says, The king is under God and under the law, because when there is no law, there is no king. It comes from a 13th-century jurist named Henry de Bracton, and it not only gave me my news peg, it held my study together. Here’s what I wrote at the time (beginning in the middle of a sentence):
You don’t get any more basic than that, with the possible exception of habeas corpus (which predates Magna Carta by roughly 50 years since it grows out of the Assize of Clarendon of 1166 that set up the first circuit courts and juries, and, with them, the whole idea of due process). The principle — which might be summed up as ya gotta follow due process, no matter who you are — only gets added weight from its association with that exchange between King James I and Sir Edward Coke, rightly regarded as one of England’s two or three greatest jurists. Here’s Lord Coke’s account of it in the Institutes:
A controversy of land between parties was heard by the King, and sentence given, which was repealed for this, that it did not belong to the common law: then the King said,he thought the law was founded upon reason, and that he and others had reason, as well as the Judges: to which it was answered by me, that true it was, that God had endowed His Majesty with excellent science, and great endowments of nature; but His Majesty was not learned in the laws of his realm of England […]
Coke goes on to say cases at law “are not to be decided by natural reason but by the artificial reason and judgment of law, which law is an act which requires long study and experience”; and the law “protected His Majesty in in safety and peace.” Coke concludes his account like this:
[…] with which the King was greatly offended, and said, that then he should be under the law, which was treason to affirm, as he said; to which I said, that Bracton saith, quod Rex non debet esse sub homine, sed sub Deo et lege [That the King ought not to be under any man but under God and the law.].
I didn’t think Coke reported what came next, but my recollection from reading Catherine Drinker Bowen’s 1957 biography The Lion and the Throne is that Coke fell to his knees and begged forgiveness. It was granted, but he was later fired from his seat on the Court of King’s Bench. So James’ pretensions of divine right monarchy prevailed; those of his son Charles I led to the English Civil War, and it wasn’t until the Revolution of 1688 that parliamentry supremacy, and with it the supremacy of the common law, was reestablished.
Which leads me, in a roundabout way, back to Dahlia Lithwick’s reaction back in 2016 when Trump was first elected. She clearly saw him as a threat to the rule of law. You don’t have to claim to be a divine right monarch to trash the rule of law. I think the editorial board at The Guardian, where they know a thing or two about monarchs, have it right when they compare Trump’s “court of fiat and favourites” to feudal England.
Maybe kinda like King John’s before Magna Carta?
But Trump’s style, as Lithwick suggested in 2016, has always been more than of a sleazy real estate developer to whom “Judges are tools [and] Laws are malleable.” She didn’t hold out much hope for the future, and the way many (but not all) white-shoe law firms and even the US Supreme Court have kissed the presidential ring have been disappointing.
But enough, maybe just enough, grand juries and trial court judges have stood up to the regime, to give me maybe, just maybe a glimmering of hope that a legal system tmight endure that began with Magna Carta, the Assize of Clarendon and trial ”by the oath of twelve knights of the hundred—or, should knights not be present, by the oath of twelve lawful freemen.”
There’s something else Dahlia Lithwick said the day after the election in November 2016 I can’t get out of my mind. It leaves me with one of those feelings I can’t quite define, something in between a hunch, a glimmering of hope and a cry for help. Says Lithwick:
Lawyers are by definition small-c conservative, incrementalist, and cautious. 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. We will be more apt than anyone to try to shift along in Trump’s America, doing our best. Hoping to make it a little more just for the weakest around the margins.
I may be cruelly disappointed next Tuesday. It’s happened before on election day. But in shows like Ari Melber’s and low rumbling noises I’m beginning to hear from Democrats on Capitol Hill, I’m beginning to take a little hope.
Maybe it’s time to get those footnotes locked and loaded, gentlemen and ladies.
Works Cited
Sir Edward Coke, Prohibitions Del Roy [Case of Prohibitions], 12 Co. Rep. 63 (Wikipedia), 1607,
Dahlia Lithwick. “Will Trump’s Rule of Law Be Our Rule of Law?” Slate.com Nov. 9, 2016; quoted in my blog, “Resisting Trump’s rule of law: “[Lawyers] don’t do revolution if a strongly worded footnote would suffice.”[…] plus reax to today’s flag- burning Tweetstorm,” Teaching B/log, Nov. 29, 2016 https://teachinglogspot.blogspot.com/2016/11/misc-links-trump-rule-of-law.html
Ari Melber, “Blue Wave for WAR CRIME impeachment? Hegseth eyes EXIT as Dems ready probes,” MS NOW, Oct. 26, 2026 https://www.youtube.com/watch?v=t2syXZifXCU.
Timothy Snyder, “State Terror,” Thinking About …, Substack, April 15, 2025 https://snyder.substack.com/p/state-terror.
“Trump’s wealth and power: a medieval court wreaks havoc in the 21st century,” staff editorial, Guardian, July 1, 2026 https://www.theguardian.com/commentisfree/2026/jul/01/the-guardian-view-on-trumps-wealth-and-power-a-medieval-court-wreaks-havoc-in-the-21st-century.
Also, these citations from my dissertation, a copy of which is no doubt gathering dust in the grad library at UT-Knoxville and is also available on microfilm from the University of Michigan:
[Uplinked Oct. 29, 2026]
