The Supreme Court’s majority opinion in the recent presidential immunity case provides a stark example of how the current court blatantly cherry-picks text and history rather than takes a truly originalist approach. The result is an egregious error that could threaten democracy itself.
Originalism is a fine approach. What the Constitution says, its structure and the historical context regarding its formation are all important considerations. Indeed, an originalist approach, rather than a doctrinal approach of upholding precedent, has led to important and justified decisions. Brown v. Board of Education, for example, partially used an originalist approach to overturn the “separate but equal” precedent established by Plessy v. Ferguson.
But originalism should be employed wholistically. In the Trump immunity opinion, Chief Justice John Roberts cites Federalist No. 70 several times. The key idea he extracts to help justify granting absolute immunity to the president is that the executive must have “vigor” and “energy.” If a president is concerned about possible prosecution for his presidential decisions after leaving office, Roberts argues, he may be inhibited to take bold actions for the public good. A feeble executive leads to feeble government.
Yet Roberts should have kept reading the rest of the essay, written by Alexander Hamilton, who was no opponent of executive power. To Hamilton, a strong chief executive was a means of ensuring accountability, not of avoiding it. He highlighted this by countering the argument that there should be an American equivalent to the British king’s privy council — a formal body of advisors composed of noblemen and politicians.
Hamilton rejected the idea of having such a council for the president. His main argument was that a chief executive could avoid responsibility for his actions by blaming his council and their advice.
Hamilton points out that the king enjoyed absolute immunity. So under this British system, a privy council was a good idea. Its members did not enjoy the king’s immunity; they could thus be held responsible for the advice they gave to their monarch. In Hamilton’s words, the council effectively “serves in some degree as a hostage to the national justice for his [i.e., the king’s] good behavior.”
Although the king could ignore the advice of his council, he would think twice before violating a parliamentary law if he knew that members of his privy council could be held liable if they had recommended that action. How could a king continue to enjoy the support of the nobility and other important leaders if he consistently went off track and got them in trouble?
But the system established by the American Constitution, under debate when Hamilton wrote Federalist No. 70 in 1788, was not (and is still not) the same as the British system. Hamilton’s whole argument is summarized in short prose willfully ignored by Roberts, despite it being only a few pages after the chief justice’s extractions.
“But in a republic," he wrote, “where every magistrate ought to be personally responsible for his behavior in office, the reason which in the British constitution dictates the propriety of a council not only ceases to apply, but turns against the institution....In the American republic it would serve to destroy, or would greatly diminish the intended and necessary responsibility of the chief magistrate himself.”
Hamilton’s argument, and one purpose of Federalist No. 70, is that the president should be accountable, which is why an American version of the privy council was not a good idea.
To Hamilton, a chief executive who held vast power bore the responsibility in using that power. This is why, in Federalist No. 69, he pointed out the importance of subjecting the president to the same laws as the citizenry. Although Roberts correctly states that in Federalist No. 69 Hamilton “did not endorse or even consider whether the Impeachment Judgment Clause immunizes a former President from prosecution,” he apparently missed Hamilton’s meaning. Hamilton wrote:
“The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law. The person of the king of Great Britain is sacred and inviolable; there is no constitutional tribunal to which he is amenable; no punishment to which he can be subjected without involving the crisis of a national revolution.”
Revolution is the mechanism to hold a king accountable in the British system, according to Hamilton. But, as Hamilton knew from personal experience, revolutions have costs. In the U.S., the risk of revolution was reduced, if not avoided, by creating two mechanisms to hold the president accountable: a political process involving impeachment and removal, and a legal process involving prosecution and punishment. Even Roberts acknowledges in the opinion that impeachment and removal are not necessary preconditions for prosecution — they are separate mechanisms.
Yet Roberts has come to the opposite overall conclusion regarding presidential immunity while citing the very essay in which Hamilton makes clear that chief executives are supposed to be held responsible for their actions.
In rejecting the idea of a king, the Founders were rejecting one of the core tenants of monarchy: absolute immunity. The Supreme Court, in granting similar absolute immunity to presidents, does not preserve the spirit of anti-monarchism inherent in the American Revolution, but instead invites monarchy’s restoration.
Michael Szalma is a retired Army officer and a history professor at Valencia College in Central Florida.
