On December 1, President Joe Biden announced that he was pardoning his son Hunter for all the crimes he committed from January 1, 2014 through December 1, 2024. Biden’s sweeping pardon of all of his son’s abuses epitomizes how presidents and their families are now above the law. It also illustrates how the “King James Test for American Democracy” could become the death of the Constitution.
The American Revolution was heavily influenced by a political backlash that began across the ocean in the early 1600s. King James I claimed a “divine right” to unlimited power in England, sparking fierce clashes with Parliament. Since the 9/11 attacks, some of the same moral and legal principles have been advanced in this nation, but few people recognize the historical roots.
Before he became king of England in 1604, James was king of Scotland. He cemented his claims to absolute power thereby launching witch panics and burning hundreds of Scottish women alive to sanctify his power. Harsh methods were not a problem because James insisted that God would never allow an innocent person to be accused of witchcraft.
“While James’s assertion of his [Scottish] royal authority is evident in his highly unorthodox act of taking control of the pre-trial examinations, it is his absolutism which is most apparent in his advocating the use of torture to force confessions during the investigations,” according to the University of Texas’s Allegra Geller, author of Daemonologie and Divine Right: The Politics of Witchcraft in Late Sixteenth-Century Scotland. Torture produced “confessions” that spurred further panic and the destruction of far more victims. England did not have similar witch panics because officials were almost entirely prevented from using torture to generate false confessions. James justified the illicit torture, “asserting his belief that as an anointed king, he was above the law.”
After Queen Elizabeth died and James became king, he vowed that he had no obligation to respect the rights of the English people: “A good king will frame his actions according to the law, yet he is not bound thereto but of his own goodwill.” And “law” was whatever James decreed. Nor did he flatter the men elected to the House of Commons: “In the Parliament (which is nothing else but the head court of the king and his vassals) the laws are but craved by his subjects and only made by him at their rogation.”
James proclaimed that God intended for the English to live at his mercy: “It is certain that patience, earnest prayers to God, and amendment of their lives are the only lawful means to move God to relieve them of their heavy curse” of oppression. And there was no way for Parliament to subpoena God to confirm his blanket endorsement of King James.
James reminded his subjects that “even by God himself [kings] are called Gods.” Seventeenth-century Englishmen recognized the grave peril in the king’s words. A 1621 Parliament report eloquently warned: “If [the king] founds his authority on arbitrary and dangerous principles, it is requisite to watch him with the same care, and to oppose him with the same vigor, as if he indulged himself in all the excesses of cruelty and tyranny.” Historian Thomas Macaulay observed in 1831, “The policy of wise tyrants has always been to cover their violent acts with popular forms. James was always obtruding his despotic theories on his subjects without the slightest necessity. His foolish talk exasperated them infinitely more than forced loans would have done.”
Macaulay scoffed that James was “in his own opinion, the greatest master of kingcraft that ever lived, but who was, in truth, one of those kings whom God seems to send for the express purpose of hastening revolutions.” After James’s son, Charles I, relied on the same dogmas and ravaged much of the nation, he was beheaded. Charles I’s son ascended to the English throne in 1660, but his abuses spurred the Glorious Revolution of 1688 and sweeping reforms that sought to forever curb the power of monarchs.
A century and a half after King James denigrated Parliament, a similar declaration of absolute power spurred the American Revolution. The Stamp Act of 1765 compelled Americans to purchase British stamps for all legal papers, newspapers, cards, advertisements, and even dice. After violent protests erupted, Parliament rescinded the Stamp Act but passed the Declaratory Act, which decreed that Parliament “had, hath, and of right ought to have, full power and authority to make laws and statutes of sufficient force and validity to bind the colonies and people of America, subjects of the crown of Great Britain, in all cases whatsoever.” The Declaratory Act canonized Parliament’s right to use and abuse Americans as it pleased.
The Declaratory Act ignited an intellectual powder keg among colonists determined not to live under the heel of either monarchs or parliaments. Thomas Paine wrote in 1776 that “in America, the law is king. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other.” The Founding Fathers, having endured oppression, sought to build a “government of laws, not of men.” That meant that “government in all its actions is bound by rules fixed and announced beforehand — rules which make it possible to foresee with fair certainty how the authority will use its coercive powers,” as Nobel Laureate Friedrich Hayek noted in 1944.
For generations, American politicians spoke reverently of the Constitution as America’s highest law. But in recent years, the Constitution has fallen into disrepute. The rule of law now means little more than the enforcement of the secret memos of the commander-in-chief.
We now have the “King James Test for American Democracy.” As long as the president does not formally proclaim himself a tyrant, we are obliged to pretend he is obeying the Constitution. Government is not lawless regardless of how many laws it violates — unless and until the president formally announces he is above the law.
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