Can Trump Use His Military Forces to Murder Americans with Impunity?

As I have indicated in my recent posts, one of the primary charges against Charles I at his trial was that he was guilty of murdering his own people in the Civil War that he started, and since murder was a capital crime, he could be rightly executed.  "Whoso sheddeth man's blood, by man shall his blood be shed" (Gen. 9:6) is both a law of God and a law of nature.  And like any law of nature, it is an impartial rule: anyone who commits murder shall be punished, which includes the king.  The impartiality of law must therefore deny the maxim of the English common law that "the king can do no wrong," so that the king is above the law.

If President Trump begins murdering Americans, will he be able to claim, as Charles I did, that he is immune to criminal prosecution for murder?

On January 23, 2016, in a campaign speech at Dordt College in Iowa, Trump bragged about the loyalty of his voters, and he explained: "I could stand in the middle of 5th Avenue and shoot somebody, and I wouldn't lose any voters, ok?  It's like incredible."  Of course, Trump's defenders have said that he was just joking.  But in 2019, Trump's lawyers argued in a federal court that since Trump had total immunity from criminal prosecution for anything he did while President, this would include murder.

Now, until recently, it was generally understood that the presidency as established by the Constitution does not have the immunity from criminal prosecution that had been claimed by the British king.  In Federalist Number 69, Alexander Hamilton explained how the President is "liable to prosecution and punishment in the ordinary course of law," and how this distinguishes the President from the King of Great Britain, who is "sacred and inviolable" and thus above the law in not being subject to legal punishment.

In the North Carolina Ratifying Convention, James Iredell compared the British King and the American President.  The King "has great powers and prerogatives; and it is a constitutional maxim, that he can do no wrong."  But contrast, the President can be punished for his bad behavior.  He can be impeached.  And "if he commits any crime, his is punishable by the laws of his country, and in capital cases may be deprived of his life."  So the President could be tried for the capital crime of murder and executed if convicted.  As far as I know, no one in any of the ratification conventions disagreed with Iredell about this.

But last year, in the case of Trump v. United States, the U.S. Supreme Court overturned the original meaning of the Constitution and effectively amended the Constitution (in a 6 to 3 decision) to declare that the President has absolute immunity from criminal prosecution for actions within his "core constitutional powers"--that is, powers that belong exclusively to the President.

In her dissenting opinion, Justice Sotomayor warned: "in every use of official power, the President is now a king above the law."  She explained:

The Court effectively creates a law-free zone around the President. . . . The President of the United States is the most powerful person in the country, and possibly the world.  When he uses his official powers in any way, under the majority's reasoning, he now will be insulated from criminal prosecution.  Orders the Navy's Seal Team 6 to assassinate a political rival?  Immune.  Organizes a military coup to hold onto power?  Immune.  Takes a bribe in exchange for a pardon?  Immune.  Immune, immune, immune.

Although Chief Justice Roberts ridiculed Sotomayor for "fear mongering on the basis of extreme hypotheticals," we now see Trump setting into motion the very criminal actions--perhaps including murder--that Sotomayor warned about.

Recently, The New Republic has published a secret memo from the Department of Homeland Security about a secret meeting between Philip Hegseth (brother of Pete Hegseth), Liaison Officer to Department of Defense, and all the senior people at the DoD.  A few weeks ago, Trump ordered National Guardsmen and a contingent of Marines to deploy in Los Angeles to help ICE officers facing resistance from people protesting the kidnapping of people identified as illegal immigrants.  Now, at this meeting, the participants talked about orders from Trump that "our joint work in L.A." should be expanded across the country "for years to come." According to one part of the memo, "SECDEF Hegseth wants this meeting to be a message to the uniform side of DoD emphasizing the urgency of the homeland mission."

Notice what this means: the military forces of the United States ("the uniform side of DoD") will be deployed for the "homeland mission" of targeting those Americans who resist the enforcement of Trump's domestic policies.  Can't we expect that this will mean military attacks on Americans peacefully protesting Trump's policies, which will include killing some of those Americans?

Presumably, under the majority's decision in Trump v. U.S., Trump ordering his soldiers to kill Americans will come under the President's "absolute immunity" because his power as Commander in Chief belongs to his "core powers."

Is this "fear mongering on the basis of extreme hypotheticals"?  Or is this fear justified by what we know about Trump's grandiose narcissism, his belief that he is God's Chosen One to save America from it's enemies, and the belief of Trump's intellectuals like Curtis Yarvin that something like the absolute monarchy of the Stuart kings would be best for America?

The Evolutionary Psychology of Lex Rex

                                    A Contemporary German Print of the Execution of Charles I

The evolutionary psychology of Lex Rex--that the law rules over the king--depends on two points.  First, we need to see how as opposed to regicide by assassination (murder), regicide by legal execution (as in the trial of Charles I) affirms the impersonal rules of law as superior to absolute monarchy's rule by personal threats.  This understanding of law as impersonal or impartial moral rules is unique to human beings because it arises from the natural evolution of the human capacity for the language of rational symbolization.

The second point is that the denial of the sacred authority of the king to rule with impunity was part of the cultural evolution of the rise of theocratic sacred monarchy (beginning in ancient Mesopotamia) and its decline (beginning in 17th century England) culminating in the Lockean liberalism of King Charles III's Christian monarchy.

Two Kinds of Regicide

In the first systematic and quantitative study of regicide in Europe, Manuel Eisner (2011) has collected data on the frequency of violent death and regicide among 1,513 monarchs in Europe between AD 600 and 1800.  He has distinguished four categories of violent death: accident, battle death, murder, and legal execution.  He found that in the seventh century, the frequency of regicide was 2,500 murders per 100,000 years in office.  There was a long decline in regicide.  So that by the eighteenth century, the frequency of regicide was about 200 per 100,000 years in office.  By comparison, the homicide rate in Western Europe today is around 0.6-1.5 per 100,000 person-years.  Clearly, then, European kingship before the Industrial Revolution was one of the most dangerous occupations in the world, comparable to that of soldiers in combat.

Eisner found that for most of this history, regicide by assassination was carried out within the noble elite in the competition for political rule.  But, then, by the seventeenth century, regicide became a matter of legal execution--the execution of Charles I in England in 1649 and the execution of Louis XVI in France in 1793.  In the Glorious Revolution of 1688, James II was deposed and defeated in war without being executed.

The decline in regicide seems to be part of the general historical decline in homicide (Eisner 2003; Pinker 2011).  This general pattern of declining violence seems to be associated with a Hobbesian pacification process, in which the state claims a monopoly on the legitimate use of violence, and with a Lockean liberal culture of bourgeois virtues that arise in modern commercial societies, in which people learn to control their violent impulses for the sake of peaceful economic and social exchange.

Jane Goodall and other primatologists have presented evidence that chimpanzees are similar to human beings in the practice of political assassinations.  There is plenty of evidence of chimpanzees from one community killing individuals from another community, which looks like warfare.  Goodall's observations of chimpanzee intercommunity violence have now been confirmed by similar observations from many chimpanzee communities across Africa.  

What is most surprising about this is that lethal violence within chimpanzee communities is extremely rare (Newton-Fisher and Emery Thompson 2012).  Chimpanzees often become aggressive in conflicts with one another, but they usually resolve their conflicts without physical contact; and even if there is some physical violence, it is almost never lethal, even though chimpanzee canines are powerful weapons for wounding and killing victims.  Most aggression between adult males consists of bluffing attacks without physical contact--threatening gestures and vocalizations and charging displays.  (This is also true for human beings, who often engage in bluffing displays of aggression, but for whom homicide is rare, despite the publicity given to homicidal violence.)

After decades of observations of chimpanzee communities across Africa, there have been only four documented cases of lethal violence between adult males of the same community, in which a coalitional gang of adult males killed a lone victim.  Kaburu et al. (2013) point out that the individuals killed in these cases were either low-ranking males or they were previously deposed alpha males.

In the revised edition of his Chimpanzee Politics, Frans de Waal reported that in the summer of 1980, Luit--the alpha male of the chimpanzee community in the Arnhem Zoo in the Netherlands--was attacked brutally and killed by Nikkie and Yeroen, who had previously been alpha males (de Waal 1998, 211-214).  De Waal describes the bloody scene: "Apart from biting off fingers and toes and causing deep gashes everywhere, the two aggressors removed Luit's testicles, which were found on the cage floor."  This looks like a political assassination.  But it's hard to know whether this case of lethal violence among captive chimpanzees is an abnormal consequence of their captive conditions.  The killing of Luit occurred at night, when the chimps were confined in their night cages.

Kaburu et al. claim to report the first case of lethal violence among wild chimpanzees in which the victim was the incumbent alpha male.  PM was the alpha male of the M-group of chimpanzees in the Malale Mountains National Park in Tanzania when he was killed on October 2, 2011.  He had been the alpha male since 2007.  After a bloody fight between PM and PR, the beta male, PR left.  A weakened PM  was then attacked brutally by a coalition of four other adult males, including two former alpha males (AL and DE).  AL was the alpha male overthrown by PM in 2007.  After the killing, there was a period of social instability.  AL became the alpha male for a short time.  But by November, PR had become the alpha male and is now the alpha male of the M-group.

Kaburu et al. explain this as an opportunistic attempt by AL (the third ranking of 10 adult males) to seize the alpha position once he saw that PM was weakened by the fight with PR, although AL was unable to hold his alpha position for long against the challenge of PR.

When I asked Michael Wilson (a primatologist at the University of Minnesota) about whether there were any other cases of alpha males being killed, he mentioned two cases at Gombe.  Vincent was the alpha male of the Mitumba community at Gombe.  He fell from a tree and severely injured himself.  He lived for another three months before two adult males attacked and killed him.  Michael says he has not yet written a report of this case.

The second case was that of Goblin, another alpha male at Gombe.  He was severely attacked and would have died if a vet had not treated his wounds.  Kaburu et al. mention this case, but they claim that Goblin had been deposed from his alpha position before the attack.

Even if chimpanzees show a few cases of political assassination of an alpha male, which is comparable to the political assassination of a king among human beings, it is clear that chimps are incapable of the legal execution of a leader, because legal execution implies laws as impartial moral rules, which requires the uniquely human capacity for rational symbolization.

Previously, I have written about Peter DeScioli's argument that laws are moral rules for choosing sides in conflicts by impartial rules of action, which arose first in the human environment of evolutionary adaptation--or in what Locke called the "state of nature."  Laws as impartial rules require moral judgment, which is unique to human beings, because moral judgement depends on the human rational or symbolizing mind that can grasp and share the abstract symbolic values of the good and the just.  

Dominant chimps rule by personal threats: if you challenge my alpha male dominance, I will punish you.  Tyrannical humans sometimes rule by personal threats.  But humans can also formulate impartial laws for judging who has the right to rule:  in America, whoever is elected president by the proper constitutional procedures has the right to rule as president as long as he is constrained by the rule of law.

Charles I claimed to rule by the law of absolute monarchy--that "the king can do no wrong" and is thus above the law--but this was really a personal threat disguised as impartial law.  Because by impartial law, kings must follow the laws like anyone else.  And so, if the king commits murder by initiating a Civil War in which he kills his own people, then he is guilty of murder and should be punished for it as any other murderer would be.  The legal trial and legal execution of Charles I affirmed that principle--that Law is king over the king.

The Cultural Evolution of Sacred Monarchy from Hammurabi to King Charles III

This is a tracing of a rock drawing from a cave at the stone age site of Remigia, Castellon, Spain, dated to sometime before 6500 BCE.  Christopher Boehm used this rock drawing at Remigia to illustrate the importance of capital punishment in the evolution of morality and egalitarian hierarchy.  He observed that on the right we see ten men jubilantly holding their bows over their heads.  On the left, we see a man lying on the ground with exactly ten arrows sticking in his body or on the ground.

It's hard to know for sure what has happened.  The victim could have been a prisoner of war who has been executed.  In fact, other drawings at Remigia show scenes of warfare.  But Boehm suggests that given what we know about hunter-gatherer foragers in the ethnographic record, it's more likely that the victim here was a deviant member of the band who had violated the moral rules of the band--perhaps by murdering someone--and he was becoming a bully who was trying to assert his dominance over the group.   

This also illustrated Boehm's "ambivalence model" of human nature in politics.  Human politics arises from the complex tension between three levels of our evolved political psychology: dominance, deference, and counter-dominance.  Some human beings want to have dominance over others.  Most human beings are inclined to defer to the rule of the dominant ones.  But when that dominance becomes despotic and exploitative, people will resist that dominance and punish the bullies by shunning them, ostracizing them, or--in the most dangerous cases--killing them.  Previously, I have written about this as showing the evolution of equal liberty through capital punishment.

But then about seven thousand years ago, the first agricultural settlements appeared in the ancient Near East.  And about five thousand years ago, the first urban states appeared.  The city of Uruk emerged in ancient Mesopotamia around 3,200 BC.  These states were the first sacred monarchies, in which the king claimed the absolute power to rule by divine right.  This claim to rule by divine authority is evident in the black stone stela that present the Laws of Hammurabi that were compiled toward the end of the reign of Hammurabi (1792-1750 BC), who was the sixth ruler of the First Dynasty of Babylon.

The Louvre stela is almost seven and a half feet tall.  The top one-third of the stela shows the sun-god Shamash, the god of justice, seated on his throne, with King Hammurabi standing before him.  It is not clear whether the god is dictating the laws to Hammurabi, or Hammurabi is presenting the laws to the god, or Hammurabi is accepting the rod and the ring that are the emblems of authority.  In any case, this conveys the clear message to the viewers--even the many illiterate people who cannot read the laws--that Hammurabi's laws are divinely authorized by the god of justice.

The evidence collected by anthropological archaeologists--that has been surveyed by Kent Flannery and Joyce Marcus in The Creation of Inequality--has shown that in the first monarchic states, the power of rulers over their subjects could not be legitimated by reason alone, and rulers had discovered that they needed to pretend that they ruled by divine right--that political rule was sanctified by a religious cosmology.  Originally, the first human beings had no rulers other than the gods, but eventually they were persuaded that some human beings could rule with divine authority.

Every society has some cosmological explanation for how human beings and their world came into existence, and this cosmological creation story provides moral sanction for their social order.  Typically, the world begins as a formless chaos, and then some supernatural spirits create order out of this chaos, including the creation of human beings.  This creation story constitutes the moral charter for a society because it provides a sacred origin for the moral rules of a society. And thus religious belief is an evolutionary adaptation for binding people together into social groups.

Originally, among nomadic hunter-gatherers, the cosmological creation story sanctioned a celestial dominance hierarchy: the invisible supernatural beings were the alphas, the invisible ancestors were the betas, and the living human beings were the gammas.  Therefore, originally, all living human beings were equal in their subordination to the invisible gods and ancestors.  Inequality of social ranking arose when some living human beings successfully claimed that they or their clans were divine or divinely sanctioned for rule over others, and thus there was a cosmological justification for inequality.

Here in ancient Mesopotamia is the first cosmic teleology of human law as rooted in divine law, which is developed in Plato's Timaeus and the Bible, and which becomes the theme of the Divine 
Cosmic Model of the universe that runs through human civilization for four thousand years.  

But even though this mysterious magic of a sacred monarchy could win the deferential submission of people, a tyrannical monarchy often provoked the resistance of the people.  As I have indicated in my posts on Hammurabi's Laws and the Mesopotamian kingships, whenever a king increased his exploitation of his people--through increased confiscation of grain, increased taxation, increased conscription of soldiers and laborers--this provoked flight or rebellion.  The records of the Mesopotamian states are full of evidence of people running away from their states--slaves running away from their enslavement, soldiers running away from their conscripted service in war, taxpayers running away from oppressive taxation, laborers running aways from coerced labor, and people generally running away from cities racked with famine and contagious diseases.  

There is also evidence that over 3,000 years of Mesopotamian life, there were hundreds of rebellions.  Historian of the Ancient Near East Seth Richardson (2010, 2016) has noted that rebels against the state were described by state authorities as "the violators of contracts (mitgurtu, rikistu)."  The Akkadian words mitgurtu and rikistu denote agreement, consent, contract, or treaty.  Richardson has observed:  "These motifs relating to violation-of-contract strike a familiar chord to us moderns, since they suggest the premise of a social contract between ruler and ruled, or at least the existence of legal treaties and loyalty oaths" (2010: 9).

Not only in ancient Mesopotamia, but also throughout the ancient Mediterranean world--the Near East, Greece, and Rome--one sees the same pattern of rebellions against the state in which rebels assert their natural freedom from oppression and thus confirm Locke's understanding of government as dependent on the consent of the governed (Howe and Brice 2016).

But this raises a question:  if there was so much popular resistance to the tyranny of sacred monarchy, then why was it the predominant form of government for five thousand years?  Throughout most of this history, the number of monarchies far exceeded the number of nonmonarchies.  

But then around 1900, the number of nonmonarchies surpassed the number of monarchies.  Today, there are very few monarchies in the world, and most of the most prominent monarchies today--like Great Britain--have a purely ceremonial monarch who has no sovereign power to rule.  This raises a second question:  why has monarchy declined in the last few centuries?

As I have indicated in some previous posts, there are at least two kinds of answers to the question of why monarchy was the prevalent form of government for thousands of years.  The first answer is that historically monarchies have been limited in their exercise of sovereign power over their people, and thus they have been limited in their capacity for the sort of tyrannical exploitation that provokes popular resistance.  For example, the evidence from those first monarchic states in ancient Mesopotamia shows an odd contradiction between their claims of absolute sovereignty and the reality of their severely limited powers.  For example, in their written legal codes, one can see what Seth Richardson has identified as "the curious absence of the state in the text." In the prologue and epilogue to Hammurabi's Code, Hammurabi claims absolute divinely granted authority over Babylonia.  But in the hundreds of laws in his code, there is almost no reference to himself or to the central state as providing judgment or enforcement of the law.  Most of the laws seem to assume private enforcement: when something goes wrong, the wronged party must act on his own with the help of local people to investigate, try, convict, and punish the guilty parties. 

What we see here is what Richardson has called the "presumptive state": the early states in Mesopotamia were presumptive in claiming a sovereignty that they did not in fact possess. Their rhetorical claims for absolute sovereignty have been mistakenly interpreted as evidence for the reality of Oriental Despotism.

Over the past 5,000 years, some states have expanded their power to rule through autocratic bureaucracies--for instance, China under the Song dynasty (960-1279).  But even the most powerful states have had to rely to some degree on law enforcement by private individuals acting through customary laws of vengeance and compensation.

Beginning in the nineteenth century, some states began to extend their law enforcement power by inventing modern professional policing.  Previously, people had policed themselves.  Robert Peel founded the London police in 1829.  The English Reform Act of 1835 extended this system of policing to all municipal boroughs.  Boston established the first American police force in 1838.

As long as monarchic states could not fully enforce their laws directly on their people, and their people were free to police themselves, those monarchic states had little power to tyrannically exploit their people.

The second answer to why monarchic states predominated for thousands of years is that in large societies where people are disconnected, the king provides a readily available focal point for legitimating government.  As I have indicated in a previous post, John Gerring and his colleagues have argued that from the appearance of the first states in the ancient world to the beginning of the modern era about 250 years ago, monarchy was the most common political regime because it was the most efficient solution to the problem of selecting leaders to coordinate social order in large societies where people are isolated from one another.  In the modern era, however, improvements in the technology of communication--for example, the printing press, newspapers, national postal systems, the telegraph, radio, television, and the internet--made it easier for people in large societies to communicate with one another and thus to mobilize a mass public for social coordination, which allowed elites to develop new systems of rule that did not need a central locus of sovereignty in a monarch (Gerring et al. 2021).

But doesn't this beg an obvious question--Why can't kings use modern mass communication to glorify their monarchic rule over their people?

We can answer that question by considering again the causes of the English Civil War, which led to the first trial and execution of a king.  Thomas Hobbes (in Behemoth) indicated that disputes over the interpretation of the Bible were a primary cause of the English Civil War.  The translation of the Bible into English in the sixteenth century and the invention of the printing press made the Bible widely available to common people, who could then interpret the Bible for themselves rather than being dependent on the authority of their priests.  The printing press also facilitated the production of thousands of books and pamphlets debating theological and political questions.  This contributed to the Protestant Reformation in breaking from the authority of the Catholic Church.  As a consequence, all the parties in the English political controversies of the time found their ideas in the Bible (Hill 1993).  People like John Cooke could publish books arguing that the Bible did not support absolute monarchy.  And when the Stuart monarchy was restored in 1660, Charles II had to order the burning of such books as the greatest threat to the monarchy.

The success of modern mass communication in popularizing ideas of religious and political liberty has made it ever harder to defend absolute monarchy with the coercive enforcement of one national church.  This was dramatically manifested in the coronation of King Charles III on May 6, 2023, which was broadcast around the globe.  In the Coronation Liturgy--as designed by Charles himself--we saw a subtle interweaving of Old Testament and New Testament traditions that reconciled the conflicts between them by favoring the liberal interpretation of the New Testament advanced by Roger Williams and John Locke.

Since Henry VIII, the English King has been "Defender of the Faith"--first the Catholic Church and then the Anglican Church, which meant that the King would enforce a theocracy.  But King Charles III has identified himself as the "Defender of Faith"--that is, all religious faiths.  And indeed the coronation procession into Westminster Abbey included "faith leaders" from a dozen or more religious traditions.  Moreover, the Coronation Oath included a pledge "to foster an environment in which people of all faiths and beliefs may live freely."  Notice that "beliefs"--as distinguished from "faiths"--suggest that even atheists "may live freely" under the rule of Charles III.

The coronation of Charles indicated how his kingship will follow the model of Christ's persuasive kingship rather than the theocratic kingship of ancient Israel.  At the beginning of the coronation, Charles was greeted by a Chapel Royal chorister: "Your Majesty, as children of the Kingdom of God, we welcome you in the name of the King of Kings."  Charles responded: "In his name, and after his example, I come not to be served but to serve."

Here Charles echoed the words of Jesus when he warned his followers not to strive for authoritative rule over others:  "You know that the rulers of the Gentiles lord it over them, and their high officials exercise authority over them.  Not so with you.  Instead, whoever wants to become great among you must be your servant, and whoever wants to be first must be your slave--just as the Son of Man did not come to be served, but to serve, and to give his life as a ransom for many" (Matt. 20:25-28).

Charles thus intimated here that he is a king who has no coercive authority over his people, particularly in matters of religious belief.  At most, he can only exercise the sort of persuasive authority that comes through Christian preaching.

Unlike the Stuart dynasty, the King of the House of Windsor rules over Great Britain as a purely ceremonial head of state that exercises no sovereign power in what is really a liberal Parliamentary democracy where Law is King.

REFERENCES

Boehm, Christopher.  2017.  "Prehistoric Capital Punishment and Parallel Evolutionary Effects."  Center for Humans and Nature, June 12.

Cooke, John.  1649.  King Charles, His Case, or An Appeal to All Rational Men Concerning His Trial at the High Court of Justice.  London: Peter Cole.

DeScioli, Peter.  2023.  "On the Origin of Laws by Natural Selection."  Evolution and Human Behavior 44: 195-209.

Eisner,  Manuel. 2003.  "Long-Term Historical Trends in Violent Crime."  Crime and Justice 30: 83-142.

Eisner,  Manuel.  2011.  "Killing Kings: Patterns of Regicide in Europe, AD 600-1800."  British Journal of Criminology 51: 556-577.

Filmer, Robert.  1991.  Patriarcha and Other Writings.  Ed. Johann P. Sommerville.  Cambridge: Cambridge University Press.

Flannery, Kent and Joyce Marcus.  2014.  The Creation of Inequality: How Our Prehistoric Ancestors Set the Stage for Monarchy, Slavery, and Empire.  Cambridge: Harvard University Press.   

Gardiner, Samuel Rawson.  1906.  The Constitutional Documents of the Puritan Revolution, 1625-1660. Oxford: Clarendon Press.

Gerring, John, et al.  2021.  "Why Monarchy? The Rise and Demise of a Regime Type." Comparative Political Studies 54: 585-622.

Hill, Christopher.  1993.  The English Bible and the Seventeenth-Century Revolution. London: Penguin Books.

Howe, Timothy, and Lee Brice, eds.  2016.  Brill's Companion to Insurgency and Terrorism in the Ancient Mediterranean.  Leiden, Netherlands: Brill.

Kaburu, Stefano S. K., Sana Inoue, and Nicholas E. Newton-Fisher. 2013. "Death of the Alpha: Within-Community Lethal Violence Among Chimpanzees of the Mahale Mountains National Park." American Journal of Primatology 75:789-797.

Locke, John.  1988.  Two Treatises of Government.  Ed. Peter Laslett.  Cambridge: Cambridge University Press.

Newton-Fisher, Nicholas E. and Melissa Emery Thompson. 2012. "Comparative Evolutionary Perspectives on Violence." In The Oxford Handbook of Evolutionary Perspectives on Violence, Homicide, and War, 41-60. Eds.Todd K. Shackelford and Viviana A. Weekes-Shackelford. Oxford: Oxford University Press.

Pinker, Steven. 2011.  The Better Angels of Our Nature: Why Violence Has Declined.  New York: Viking.

Richardson, Seth.  2010.  "Writing Rebellion Back Into the Record: A Methodologies Toolkit."  In Seth Richardson, ed., Rebellions and Peripheries in the Cuneiform World, 1-27.  New Haven, CN: American Oriental Society.

Richardson, Seth.  2016.  "Insurgency and Terror in Mesopotamia."  In Howe and Brice 2016, 31-61.

Robertson, Geoffrey.  2005.  The Tyrannicide Brief: The Story of the Man Who Sent Charles I to the Scaffold.  New York: Pantheon Books.

de Waal, Frans. 1998. Chimpanzee Politics. Revised edition. Baltimore: Johns Hopkins University Press.

The Lockean Evolutionary Psychology of Lex Rex in the Trial of Charles I

In previous posts, I have written about how some of the most influential intellectuals supporting Donald Trump have argued that the best form of government is a divine right monarchy like that of the Stuart kings in seventeenth century England, which is why they have told Trump that he should rule as a king.  The U.S. Supreme Court has supported this by deciding that as president, Trump has absolute immunity from criminal prosecution, and so in effect he is "a King above the law."  Trump has been happy to accept the crown and to sign the executive orders that empower his Administrative State to execute his will while violating constitutional rights such as due process of law.

It would seem, then, that now is the time to study why and how English revolutionaries overthrew the Stuart dynasty--first through the trial and execution of King Charles I in 1649 and then through the Revolution of 1688 that deposed King James II.

In this post, I consider the trial of Charles I.

RESISTANCE TO CHARLES I

With the death of James I in 1625, Charles I became King of England, Scotland, and Ireland.  Throughout his reign, Charles provoked the opposition of the English Parliament, which resisted his ruling as an absolute monarch.  Particularly unpopular were his levying of taxes without Parliamentary consent and his coercive enforcement of high church Anglican practices against the opposition of Reformed religious groups such as the Puritans and Presbyterians.

In 1628, Parliament approved the Petition of Right, which charged the King with violating certain "Rights and Liberties of the Subjects."  The Petition asked that the King should no longer force anyone to pay loans or taxes without the consent of Parliament, or to be detained or imprisoned without due process of law and lawful judgment of his peers, or to be compelled to receive soldiers or mariners into their houses, or to be subject to martial law contrary to the laws of the land.

Although King Charles formally accepted this Petition, he rejected Parliament's interpretation of this Petition as limiting the king's prerogative--the exercise of absolute discretionary power without Parliamentary consent.  After dismissing Parliament in 1629, Charles governed by a purely personal rule without Parliament until 1640.  

In 1639, when Charles attempted to impose his Anglican religious practices on Scotland, he provoked a massive resistance by the Scottish Reformed religious believers who insisted on a Presbyterian church governance by elders and deacons rather than an Anglican governance by bishops.  Charles ordered the raising of armies in England and Ireland for an invasion of Scotland, but the attempt at an invasion failed.  

Wanting to launch a new campaign against Scotland, Charles needed financing that could only come from Parliament.  In 1640, Charles was forced to call for a new session of Parliament, which met in April, but then less than a month later, he dissolved what became known as the "Short Parliament."  A few months later, he summoned a new Parliament that came into session in November (the "Long Parliament").  Most of the members of this new Parliament were opponents of the King.

In 1641 and 1642, the conflicts between the King and Parliament had become so severe that by the middle of 1642, both sides had begun military preparations for Civil War.  On August 22, 1642, Charles declared war on Parliament by raising his standard outside Nottingham Castle.  By June of 1645, the King's army was decisively defeated by Parliament's New Model Army at the Battle of Naseby.  In 1646, Charles surrendered to a Scottish army.  Later, the Scots turned him over to Parliament.  

Leaders of Parliament negotiated with Charles, attempting to get his agreement that if he were reinstated as King, he would become a constitutional monarch--with no control of the army, sharing policy with Parliament, and making a religious settlement that would favor Calvinism but with some degree of toleration for other religious sects.  During this time, Charles was secretly plotting to rally his foreign, English, and Scottish supporters for a second civil war.  The New Model Army leaders intercepted Charles' letters to his wife telling her that he would not keep any agreements he might make with the army or Parliament once he had the power to break them.

In July of 1648, Charles gave the signal for a Scottish military force under the Duke of Hamilton to invade England, hoping that a second civil war would restore his absolute power over England.  This Scottish army was quickly defeated by the New Model Army under the military leadership of Oliver Cromwell and Thomas Fairfax.

The costs of these civil wars were devastating.  Historians estimate that about ten percent of the entire population of England died in the wars.  Often Charles ordered his military commanders to kill innocent civilians and soldiers who had surrendered. 

JOHN COOKE FOR LEX REX

From September to early December in 1648, the Presbyterian majority in Parliament negotiated with the King, hoping that he would agree to a constitutional monarchy in which his kingly power would be checked by Parliament.  But many of the leaders of the Army thought the King could not be trusted to negotiate in good faith.  Eventually, debates within the Army over the King's fate moved towards some kind of trial of the King and possibly his execution for his crimes.  When the majority of the House of Commons voted to negotiate a settlement with the King and rejected the Army's proposal for a trial, Colonel Thomas Pride led a troop of soldiers to Westminster Hall where they arrested the Presbyterian MPs who had supported negotiations with the King (later called "Pride's Purge").  This left Parliament under the control of an Independent majority, which was soon dubbed "the Rump" Parliament.

On January 6, 1649, this Rump House of Commons passed an Ordinance for a trial of the King.  Remarkably, the Commons asserted its right to make law without the assent of the King or the Lords:  "The Commons of England assembled in Parliament declare that the people under God are the origin oof all just power.  They do likewise declare that the Commons of England assembled in Parliament, being chosen by and representing the people, have the supreme authority of this nation" (Robertson 2005: 140).  This was the first modern statement of the principle that governments derive their just powers from the consent of the people or those who represent the people.

On January 8, 1649, in accordance with the Ordinance of Parliament, the Judges of the High Court of Justice for the trial of the King met for the first time.  They appointed John Bradshawe as their president.  John Cooke was appointed Solicitor-General and the lead prosecutor for the trial.

Cooke prepared the indictment--A Charge of High Treason, and Other High Crimes--which he read at the first session of the trial on January 20.  The indictment charged Charles with two crimes--tyranny and treason.  His tyranny was said to be a violation of his "trust":

That the said Charles Stuart, being admitted King of England, and therein trusted with a limited power to govern by and according to the laws of the land, and not otherwise; and by his trust, oath, and office, being obliged to use the power committed to him for the good and benefit of the people, and for the preservation of their rights and liberties; yet, nevertheless, out of wicked design to erect and uphold in himself an unlimited and tyrannical power to rule according to his will, and to overthrow the rights and liberties of the people, yea, to take away and make void the foundations thereof, and of all redress and remedy of misgovernment, which by the fundamental constitutions of this kingdom were reserved on the people's behalf in the right and power of frequent and successive Parliaments, or national meetings in Council (Gardiner 1906: 371-74).

That the King's power was limited by the laws of the land was not a new idea because Chief Justice Edward Coke had asserted this before King James I, and it was reaffirmed in the Petition of Right.  But the new idea here was that if the King did not rule for the good of the people and the preservation of their rights and liberties, he was guilty of tyranny.  Although tyrannical rule had been condemned for thousands of years, this was the first time in human history that a monarch was charged in a court of law with the crime of tyranny.

Charles was also charged with committing the crime of treason by initiating two civil wars against Parliament and the people therein represented--the first in 1642 and the second in 1648.  The indictment listed the exact dates and locations for each time the King led a military assault in the civil wars.

For the second session of the trial, on January 21, the King prepared a statement of his reasons for denying the jurisdiction of the High Court of Justice.  Although he was not allowed to read this at the trial, he had it published as a tract that was widely disseminated.  He stated seven reasons why the Court had no authority to put him on trial (Gardiner 1906: 374-76).

The first reason was that God's law as stated in the Bible (both Old and New Testament) commanded that subjects must obey their Kings.  He quoted one Biblical verse--Ecclesiastes 8:4: "Where the word of a king is, there is power: and who may say unto him, What doest thou?"

The second reason was that the laws of England included the maxim that "the King can do no wrong," and therefore he was above the law.

The third reason for rejecting the authority of the High Court of Justice was that the House of Commons had no authority to erect a court of judgment.  Moreover, the King noted that most of the MPs in the House of Commons had been excluded from sitting in that body, and that the House of Lords had not approved the establishment of the High Court.

The fourth reason was that any claim that the people of England had authorized this court was clearly wrong because there was no evidence that the majority of the people had in fact consented to this.

The King's fifth argument was that he was speaking not just for his own right to rule but also for the true liberty of his subjects, which was secured by his government.

His sixth argument was that he had taken up arms against Parliament to defend the fundamental laws of the kingdom against those who were trying to deny the traditional powers of the King.

Finally, the King concluded by insisting that if he were to submit to the pretended authority of the High Court, this would violate "the trust which I have from God for the welfare and liberty of my people."

Notice that while the King invoked the laws of God and the laws of England as favoring his authority, he said nothing about natural law.  And notice that as scriptural authority for God's law commanding obedience to kings, the King cited only one verse in Ecclesiastes, while remaining silent about those Biblical passages where God warns the people of Israel about the evils of kingly tyranny (for example, in I Samuel 8).

Notice also that while the King invoked the "trust" that he had "from God," he said nothing about having a "trust" with the people, thus implying that the King was accountable to God but not to the people.

By contrast, John Bradshawe's speech at the end of the trial before pronouncing the sentence of death on the king included a declaration of the King's contractual trust with the people:

For there is a contract and bargain made between the king and his people, and the oath is taken for the performance, and certainly, Sir, the bond is reciprocal, for as you are their liege Lord, so they are you liege subjects . . . the one tie, the one bond, is the bond of protection that is due from the subject.  Sir, if this bond be once broken, farewell sovereignty! (Robertson 2005: 185).

This looks like what would later be called the idea of a "social contract" in political philosophy: the people agree to obey rulers to secure their rights and liberties, but whenever any government becomes destructive of these ends, it is the right of the people to overthrow such government and establish a new government most likely to effect their safety and happiness (the Declaration of Independence).

Charles I was executed on January 30, 1649.  One week later, Cooke published his pamphlet King Charles, His Case, or, An Appeal to All Rational Men Concerning His Trial at the High Court of Justice.  This was his preemptive response to what he foresaw would be the royalist propaganda effort to turn Charles into a martyr for divine right monarchy.  And, in fact, on the same day there appeared Eikon Basilike--which came to be called The King's Book--a book about the devotions and sufferings of the holy martyr Charles I, whose sufferings were identified with the sufferings of Christ, their executions taking place after a trial with no legal authority, attended by soldiers and officials who insulted and reviled the holy figure.  Eikon Basilike became one of the bestselling books of the seventeenth century, and it warmed the hearts and minds of many ordinary English people with the supernatural magic of the Stuarts as the divinely appointed upholder of the Anglican faith--a popular sentiment that would eventually support the Restoration of the Stuart monarchy in 1660.

To counter this kind of Royalist propaganda, Cooke had to show how the execution of Charles was justified because he had criminally violated the laws against tyranny and murder.  This means that "the king is not above the Law, but the Law above the King" (6).  It's Lex Rex not Rex Lex.

But where is this Law to be found?  Cooke identified three kinds of law--the positive law of England, the law of God, and the law of nature (27).  

The positive law was ambiguous, even self-contradictory, about the legality of absolute monarchy.  On the one hand, Cooke could cite cases where the common law put legal limits on the King's power.  On the other hand, he could not deny that it was a maxim in English law that "the King can do no wrong" (25).

This forced Cooke to appeal to the law of God in the Bible as the higher law.  He thought that God's disapproval of kings ruling tyrannically unconstrained by law was clearly indicated in 1 Samuel 8.  Samuel had been ruling as a judge over Israel.  When he was old, he made his sons judges.  But when they took bribes that perverted their judgment, the elders of Israel came to Samuel and complained that the sons were not good judges.  The elders asked Samuel to "make us a king to judge us like all the nations."  This displeased Samuel.  He prayed to God for guidance.  God told him to listen to the people "for they have not rejected thee, but they have rejected me, that I should not reign over them."  God advised Samuel to warn the people about "the manner of the king that shall reign over them."

Samuel spoke to the elders:

This will be the manner of the king that shall reign over you: He will take your sons, and appoint them for himself, for his chariots, and to be his horsemen; and some shall run before his chariots.  And he will appoint him captains over thousands, and captains over fifties; and will set them to ear his ground, and to reap his harvest, and to make his instruments of war, and instruments of his chariots.  And he will take your daughters to be confectionaries, and to be cooks, and to be bakers.  And he will take your fields, and your vineyards, and your olive-yards, even the best of them, and give them to his servants.  And he will take the tenth of your seed, and of your vineyards, and give to his officers, and to his servants.  And he will take your menservants, and your maidservants, and your goodliest young men, and your asses, and put them to his work.  He will take the tenth of your sheep: and ye shall be his servants.  And ye shall cry out in that day because of your king which yet shall have chosen you; and the LORD will not hear you in that day (1 Samuel 8:11-18).

And yet the elders refused to heed Samuel's warning, and they continued to ask for a king "that we may be like all the nations."  So God said to Samuel: "Hearken unto their voice, and make them a king."  God then led Samuel to Saul, the best young man among the children of Israel, and God had Samuel anoint Saul as God's choice for king.  "And Samuel said to all the people, See ye him whom the LORD hath chosen, that there is none like him among all the people?  And all the people shouted, and said, God save the king" (1 Samuel 10:24).

Cooke said that 1 Samuel 8 was "a copy and pattern of an absolute tyrant, and absolute slaves, where the people have no more than the tyrant will afford them: The Holy Spirit in that chapter does not insinuate what a good king ought to do, but what a wicked king would presume to do" (8).  This showed that "for a king to rule by lust and not by law, is a creature that was never of God's making, not of God's approbation, but his permission."

"Samuel was a good judge, and there was nothing could be objected against him, therefore God was displeased at their inordinate desire of a king; and it seems to me that the Lord declares his dislike of all such kings as the heathens were, that is, kings with an unlimited power, that are not tied to laws; for he gave them a king in his wrath. . . . God permits this, he approves it not" (9).

Cooke inferred from this that all people have a right to rebel against monarchic tyranny: "all people that live at the beck and nod of tyrannical men, may and ought to free themselves from that tyranny, if, and when they can; for such tyrants that so domineer with a rod of iron do not govern by God's permissive hand of approbation or benediction, but by the permissive hand of Providence, suffering them to scourge the people, for ends best known to himself, until he open a way for the people to work out their own enfranchisements" (10).

But notice that even if 1 Samuel 8 suggests that God dislikes "kings with an unlimited power, that are not tied to laws," this chapter does not say that the people have the right to disobey or overthrow a tyrannical king.  Royalist writers like Robert Filmer saw this chapter as a description of "the unlimited jurisdiction of kings" that showed

that the scope of Samuel was to teach the people a dutiful obedience to their king, even in those things which themselves did esteem mischievous and inconvenient.  For, by telling them what a king would do, he instructs them what a subject must suffer, yet not so that it is right for kings to do injury, but it is right for them to go unpunished by the people if they do it.  So that in this point it is all one whether Samuel describe a king or a tyrant, for patient obedience is due to both.  No remedy in the text against tyrants, but crying and praying unto God in that day (Filmer 1991:35-36).

The royalists stressed the point that God chose Saul as the king of Israel and had him anointed, so that even when Saul was trying to kill David, and David had the chance to have him killed in self-defense, David refused: "Destroy him not: for who can stretch forth his hand against the LORD's anointed, and be guiltless?" (1 Samuel 26:9).  What this means, the royalists argued, is that a tyrannical king can be rightly punished by God but not by the king's subjects.

But even if there is no clear Biblical statement of a law of God that allows people to resist a tyrannical king, and even if there is no clear positive law of England allowing this, it is still possible to appeal to some law of nature that might allow this.  Cooke said that this law was "connatural with every man, and innate in his judgment and reason"--an innate judgment of what is required for the preservation of human life and self-defense:

That if a king become a tyrant, he shall die for it, is so naturally implied; we do not use to make laws which are for the preservation of nature, that a man should eat, and drink, and buy himself cloths, and enjoy other natural comforts; no kingdom ever made any laws for it: And as we are to defend ourselves naturally, without any written law, from hunger and cold, so from outward violence; therefore if a king would destroy a people, 'tis absurd and ridiculous to ask by what law he is to die.  And this law of nature is the law of God written in the fleshly tables of men's hearts, that like the eldest sister, hath a prerogative right of power before any positive law whatsoever; and this law of nature is an indubitable legislative authority of itself that hath a suspensive power over all human laws (23).

He identified this natural law with "the unanimous consent of all rational men in the world, written in every man's heart."  This appeal to "all rational men" was to reason's unbiased or impartial judgment--to "all understanding men in the world, that suffer their judgments to be swayed by Reason, and not biased by private interest."  So natural law consists of impartial rules of reason for settling conflicts without any bias favoring one individual or group over others.  Therefore, the king cannot be exempt from these moral rules of law: "the king is not above the law, but the law above the king" (6).

Among those who justified the trial of Charles, the most commonly cited law of nature was the law of murder in Genesis 9:6--"whoso sheddeth man's blood, by man shall his blood be shed."  They noted the impartiality of this rule: anyone who murders someone shall be punished with execution, and therefore even a king who murders someone--as Charles did in the Civil Wars--shall be executed.  The impartiality of natural law means that the king cannot be above the law (Robertson 2005: 161).

LOCKE ON LEX REX

Although John Locke never explicitly mentioned the trial and execution of Charles, he did repeat (in the Two Treatises of Government) all of the main arguments for why kingly tyranny violated natural law.  His starting point was his claim that human nature was formed in the state of nature, where all men are free, equal, and independent, so that no man has the right to rule over another without that other man's consent (ST, 95).  And that state of nature is governed by a law of nature: "Reason, which is that Law, teaches . . . that being all equal and independent, no one ought to harm another in his Life, Health, Liberty, or Possessions" (ST, 6).  The execution of that law in the state of nature is put into every man's hands, who has "the executive power of the law of nature"--the natural right to punish those who violate that law (ST, 7).  One of the fundamental manifestations of that natural power to punish is the power to kill a murderer, which is grounded in "that great Law of Nature, Who so sheddeth Man's Blood, by Man shall his Blood be shed," which is "writ in the Hearts of Mankind" (ST, 11).

In the foraging societies in Locke's state of nature, the laws of nature are moral rules for choosing sides in conflicts by impartial rules of action, which are enforced by the weak teaming up to compel the strong by their coordinated punishment of wrongdoers.  People obey these natural laws only as long as most people see them as beneficial for themselves.  So, in the case of murder, most people conclude that protection against murder is more valuable for them than the freedom to murder. 

And yet it is hard to achieve the impartial enforcement of these laws of nature in the state of nature because every person is judge in his own case, and consequently judgments are often distorted by personal bias, which can create endless conflicts.  When people leave the state of nature and establish a civil society with a formal government that makes, enforces, and judges the standing laws, this can provide an impartial rule of law for the fair settlement of disputes between any two individuals.  

But Locke warned that this impartial rule of law was violated in an absolute monarchy insofar as the king with absolute power is above the law, which means that anyone who has been injured by the king has no appeal to any legal authority that can punish the king.  In civil society, no man can be exempted from the laws.  Lex Rex--the law is king.  And therefore, if the king is above the laws, then he is still in the state of nature, and every man has the natural right to punish him for violating the law of nature (ST, 90-94).

Locke declared: "Wherever Law ends, Tyranny begins, if the Law be transgressed to another's harm" (ST, 202).  Any officer of government who acts without legal authority in using force to invade the rights of another may be rightly opposed as we would a thief and a robber who attacks us in the street or tries to break into our house.  "For the exceeding the Bounds of Authority is no more a Right in a great, than a petty Officer; no more justifiable in a King, than a Constable."

And when tyranny makes the people utterly miserable, they have a right to overthrow that tyrannical government and institute new government to secure their life, liberty, and property.  Even if tyrannical rulers claim to rule by divine right, that will not be enough to forestall revolution when the people feel oppressed: "cry up their Governours, as much as you will for Sons of Jupiter, let them be Sacred and Divine, descended or authoriz'd from Heaven; give them out for whom or what you please, the same will happen.  The People generally ill treated, and contrary to right, will be ready upon any occasion to ease themselves of a burden that sits heavy upon them" (ST, 224).

Nevertheless, Locke observed that the people are very slow and reluctant to give up the forms of government to which they have become accustomed, even when the rulers have made great mistakes.  "This slowness and aversion in the People to quit their old Constitutions, has, in the many Revolutions which have been seen in this Kingdom, in this and former Ages, still kept us to, or, after some interval of fruitless attempts, still brought us back again to our old Legislative of King, Lords and Commons" (ST, 223).

Here Locke was probably reminding his readers of the events of 1649-1660.  After the execution of the King in 1649, Parliament passed laws abolishing the office of King and the House of Lords and then declaring England to be a Republic under the rule of the Council of State and the House of Commons (the Rump Parliament).  In 1653, Oliver Cromwell led the army in dissolving Parliament and then establishing an Instrument of Government that installed Cromwell as Lord Protector for life ruling with a protectorate Parliament.  In effect, Cromwell became a military dictator.  In 1657, Cromwell was offered the crown of a king, but he refused.  In 1658, Cromwell died, and his son Richard became Lord Protector, but he was forced to resign in 1659.  

Finally, in 1660, General George Monck took control of the armies in England and conspired with Charles II to restore the Stuart monarchy.  A Convention Parliament dominated by royalist MPs opened in April.  In May, Charles II was proclaimed King of England.  In October, dozens of the "regicides"--men who had participated in the trial and execution of Charles I--were tried, convicted, and executed.  This included John Cooke, who was drawn, quartered, and disemboweled. 

Thus it was that the people were brought back to their old governmental forms of King, Lords, Commons, and Anglican Bishops.

Since this post is way too long, I will have to finish it in the next post.

Tariffs in Trump's Administrative State, Ship Money in Charles I's Monarchic Tyranny, and the Need for Countervailance

 

A New Civil Liberties Alliance Video on Its First Lawsuit Challenging the Legality of Trump's Tariffs

In recent weeks, I have been studying the debate over the constitutionality of Trump's tariffs and comparing this with the debates in the seventeenth century over the legality of King Charles I's claims to absolute monarchic power.  I have drawn three conclusions from this.  

First, while Trump's supporters have said that he will "smash the deep state and the administrative state" (Charlie Kirk's words), Trump's tariffs show that far from smashing the administrative state, he wants to take it over and use it as an instrument for his personal dictatorial power.  

Second, Charles I's attempt to raise taxes through "ship money" without Parliamentary authority was essentially the same dictatorial move as Trump's tariffs--taxation without representation.  

Third, Trump and Charles exhibit the same chimpanzee political psychology of autocrats striving for despotic dominance, and the cultural history of politics shows that the only effective way to secure our individual freedom from such domination is countervailance--a system of divided and balanced powers that check one another--that can be enforced by an independent judiciary that adheres to constitutional or natural law.

TARIFFS IN TRUMP'S ADMINISTRATIVE STATE

The New Civil Liberties Alliance (NCLA) has filed two lawsuits challenging the constitutionality of Trump's tariffs.  In Simplified et al. v. Donald J. Trump et al. (filed April 3, 2025), NCLA argues for a small company named "Simplified" that sells premium planners, organizational tools, and home management products.  Simplified imports its products from China, and paying large sums in tariffs will threaten the economic viability of the company.  (The full filing for Simplified can be found here.)  In FIREDISC, Inc, et al. v. Donald J. Trump et al. (filed July 21, 2025), NCLA argues for some companies in Texas whose business depends on imports from China and other countries.  (The full filing for FIREDISC can be found here.)

In both cases, NCLA makes the same four arguments for why Trump's imposing tariffs through executive orders is unconstitutional.

First, in his Tariff Executive Orders, Trump invokes the International Emergency Powers Act of 1977 ("IEEPA") as the statutory authorization for these orders.  But IEEPA does not give the President the power to impose tariffs.  Indeed, IEEPA does not even mention tariffs.  And in the 50 years since the enactment of IEEPA, no president (prior to Trump) has used IEEPA as authorization for the president to enact tariffs.

IEEPA allows the president to authorize asset freezes, trade embargoes, and similar economic sanctions to counter external emergencies created by dangerous foreign actors such as terrorist organizations and hostile countries such as Iran and Russia.  But this says nothing about enacting economic policies for tariffs.

The Constitution clearly vests the power to enact tariffs exclusively in Congress.  The very first enumerated power of Congress in Article I, Section 8, is the "Power To lay and collect Taxes, Duties, Imposts and Excises."  The Congress also has the power "to regulate Commerce with foreign Nations."  The Constitution never says the President has such powers.  The obvious reason for this is that under the principle of "no taxation without representation"--one of the primary principles for the American Revolution--the constitutional framers were careful to put the taxing power in the hands of the Congress as popular representatives of the people, and this includes tariffs since they are taxes on the people.

The Congress has enacted carefully crafted trade statutes that allow the president to authorize tariffs.  The NCLA's filing explains: "These statutes typically authorize tariffs only on industries or countries that meet specified criteria, and only under specified conditions, after following specified procedures.  Such statutes require advance investigations, detailed factual findings, and a close fit between the statutory authority and the tariff's scope."  These statutes are all located in the "Customs Duties" Title of the United States Code (U.S. Code Title 19).  The IEEPA is located in the "War and National Defense" section of the Code (U.S. Code Title 50).

In his first term, Trump went through the elaborate procedures required by the trade statutes to impose tariffs.  Performing the required procedures for the China tariff took more than 10 months.  The steel and aluminum tariffs took 11 months.  The washer and solar cell tariffs took more than 8 months.  Obviously, Trump in the first months of his second term decided that he did not want to be constrained by such laborious procedures for enacting new tariffs.  That's why he invoked the IEEPA to allow him to impose tariffs by simply signing executive orders, even though the IEEPA says nothing about tariffs.

The second argument against allowing the President to enact tariffs through the IEEPA is that even if judges mistakenly decided that the IEEPA allows tariffs in some cases, it still would not allow them in this case.  The IEEPA limits presidents to actions that are "necessary" to address the specific emergency at hand.  Trump declared that the country faced emergencies because of illegal opioids entering the U.S. and because of trade deficits.  But Trump has not demonstrated that tariffs are "necessary" to solve these two problems.  Amazingly, Trump is threatening to impose a tariff of 50% on Brazil even though the value of U.S. exports to Brazil exceeds the value of U.S. imports from Brazil.

The third argument is that if judges were to mistakenly decide that the IEEPA allows the President to impose tariffs, this would make the IEEPA an unconstitutional law, because the courts have said that the Congress cannot delegate its powers to tax and to regulate commerce with foreign nations to the President if there is no "intelligible principle" constraining the President's authority.  And, indeed, there is no such "intelligible principle" in the IEEPA.

The fourth argument is that the Administrative Procedure Act requires a reviewing court to "hold unlawful and set aside agency action" that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," "contrary to constitutional right, power, privilege, or immunity," or "in excess of statutory jurisdiction, authority, or limitations, or short of statutory right."  Since Trump's tariffs are unconstitutional, the administrators in U.S. Customs and Border Protection who are enforcing these tariffs are violating the Administrative Procedure Act.

These arguments manifest the mission of the New Civil Liberties Alliance as a nonprofit public interest law firm founded in 2017 by Columbia Law School professor Philip Hamburger "to protect constitutional freedoms from violations by the unconstitutional Administrative State."  Most of the financial support for the NCLA comes from groups affiliated with Charles Koch and Leonard Leo, which is to say it is part of the network of conservative legal groups that includes the Federalist Society.  One of the primary aims of these groups is to appeal to an "originalist" or "textualist" interpretation of the Constitution that would strike down the Administrative State as unconstitutional.  One of Hamburger's books is entitled Is Administrative Law Unlawful?  His answer to that question is No.

Originally, in his first campaign for the presidency, Trump said that he would follow the advice of the conservative legal movement.  "We're going to have great judges, conservative, all picked by the Federalist Society."  And, indeed, during his first term, most of his federal judge appointees were selected from lists provided by Leonard Leo and the Federalist Society--including his three Supreme Court appointees: Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.

But then Trump became angry when federal judges that he had appointed rejected his arguments for overturning the presidential election of 2020.  Even his Supreme Court appointees refused to intervene in his favor.  

More recently, however, his Supreme Court appointees have supported him.  Most importantly, last year, in United States v. Donald Trump, Trump's appointees violated the original meaning of the Constitution and actually amended the Constitution in ruling that the President has immunity from criminal prosecution for any of his "official acts" as president, which include criminally conspiring to overturn a presidential election!  In her dissenting opinion, Sotomayor rightly observed that this decision makes the President "a King above the law."

And yet, in recent months, Trump's federal judges have turned against him on the issue of presidential tariffs.  In May, a three-judge panel (the U.S. Court of International Trade) ruled that the IEEPA does not give the President the authority to impose tariffs.  In response, Trump exploded with posts on his social media platform denouncing Leonard Leo and the Federalist Society.  He sneered that Leo was a "sleazebag" and "bad person" who "probably hates America."  He complained: "I am so disappointed in The Federalist Society because of the bad advice they gave me on numerous Judicial Nominations."

Trump's mistake was not realizing that as long as the Federalist Society judges remain faithful to the original meaning of the Constitution, they will overturn Trump's Administrative State as unconstitutional.  We can see that now not only in the courts striking down Trump's Tariff Executive Orders as unconstitutional but also in the courts ruling against ICE's denial of the constitutional right to due process of law in the Fourth Amendment.

It remains to be seen, however, whether Trump's Supreme Court Justices will uphold these lower court decisions against Trump's Administrative State.  If they follow the example they set in United States v. Donald Trump, Trump's SCOTUS judges could ignore the original meaning of the Constitution and the laws in order to give Trump's Administrative State unlimited power to violate constitutional rights.  But if they were to do that, they would blatantly display the hypocrisy of their professions of originalist jurisprudence.

SHIP MONEY IN CHARLES I'S MONARCHIC TYRANNY

Trump's claim to exercise arbitrary absolute power through the Administrative State is remarkably similar to Charles I's claim to have the prerogative powers of a king above the law.  Consider, for example, the "Ship-Money Case" of 1637.

In 1629, Charles had dissolved Parliament, and he refused to call Parliament back into session for the next 11 years, so that he had personal rule over England without Parliament checking his power.  But since by the common law, only Parliament could approve taxes, Charles struggled to find ways to finance his government.  

In 1637, the King's legal advisers found a source of money in the ancient duty of every coastal county to provide and pay for a ship for the Royal Navy.  The King decided to extend this duty to all counties, even those that were not on the coast, and to collect the money through individual assessments.  He wanted to raise enough money to finance not only the navy but also the army and the government.  He did this even though England was not at war, and there was no immediate prospect of war, in 1637.  If he could do this, he would never need to recall Parliament.

This would work only if the King could persuade his judges that ship money was not a tax and that the King could levy it whenever he announced that the Navy faced a national emergency.  Notice the similarity with Trump's claims that a tariff is not a tax and that his arbitrary declaration of a national emergency under IEEPA cannot be questioned.

A test case in the courts over the legality of the ship money arose when John Hampden refused to pay his ship money levy in November of 1637.  The case was brought before 12 justices who were under pressure from the King to rule in his favor.

Hampden's lawyer argued that while the King had the right to declare war, only Parliament could decide whether to raise taxes to finance the war, and the ship money was clearly a tax.  Moreover, he argued, England was not at war, and so there was no national emergency that could justify raising taxes.

Over several days, each of the twelve judges in turn read his decision.  Seven of the twelve ruled for the King.  As they explained, "The King may dispense with any laws in case of necessity."  They also declared: "The law knows no such King-yoking policy.  The law is of itself an old and trusty servant of the King's; it is his instrument . . . it is common and most true that Rex is Lex . . . The King can do no wrong" (Robertson, Tyrannicide Brief, 48-49).

Although this might have seemed to be a clear victory for the King, that five of the twelve judges dissented sent a message to the public that they were probably right.  Many people refused to pay their ship money assessments.  And by 1640, only about one third of the assessments had been paid.  Civil disobedience was sweeping across England.  This was one reason why Charles was finally forced to call Parliament back into session in 1640.

Similarly, we can expect that the popular judgment that Trump's tariffs are illegal and unconstitutional will promote civil disobedience.  Previously, I have written about smuggling as the natural right to evade Trump's tariffs.

And even if the majority of the Supreme Court Justices uphold Trump's tariffs (or his use of ICE to deny the right to due process of law), we can expect that at least three of the Justices will write persuasive dissents that can sway public opinion against the majority.

COUNTERVAILANCE AND FREEDOM FROM DOMINATION

Just as Charles I claimed that as King he was above the law and could do no wrong, Trump claims "As President I can do whatever I want."

I have written about the evolutionary history of this desire for despotic dominance over others, of how many human beings naturally show deference to such dominance, but also how the natural desire to be free from domination moves many human beings to resist despotic rule.  The tendency to defer to Trump's grandiose narcissism of dominance is manifest among those MAGA intellectuals like Curtis Yarvin and Michael Anton who look forward to Trump's rule as a monarchic or Caesaristic autocrat.

If America escapes this, it will be because the American system of countervailing powers--the separation and balance of powers--has constrained Trump's Administrative State.  Even if the Congress fails to provide that constraint--because the Republicans controlling Congress are subservient to Trump--we can hope that the courts will enforce constitutional limits on Trump's claims to absolute power.  We can also hope that independent centers of power in civil society--in groups like the New Civil Liberties Alliance--will succeed in persuading the courts to secure constitutional liberty.  Finally, we can foresee that nonviolent resistance (like smuggling and protecting immigrants from ICE) and mass protests (like the "No Kings" protests) will show popular resistance to despotic dominance.