A Constitutional Amendment to Restore the Rule of Law in the United States
August 7, 2024
President Joe Biden’s proposed constitutional amendment – “The No One is Above the Law Amendment” – seeks to restore the cornerstone principle of American Constitutionalism by effectively overturning the U.S. Supreme Court’s recent ruling in Trump v. United States, which held that the president possesses absolute immunity from criminal prosecution for acts involving the exercise of “core powers.” The decision, criticized by scholars and judges of various political stripes, including the conservative heavyweight and revered retired Fourth Circuit Court of Appeals Judge J. Michael Luttig, clothes the president with the sort of immunity that the English King enjoyed at the time of the American Revolution.
President Biden’s constitutional proposal, if it succeeds, would be unique in our amendment history, for its effort to actually restore a founding principle shredded by the Supreme Court. The 27 amendments to the Constitution are heralded for changes to the Constitution that have expanded rights, liberties, and democratic values, but none has been necessary to reinstate a foundational principle abandoned by the Court. The Biden Amendment would state, emphatically, “No president is above the law or immune from prosecution for crimes while in office.”
The Court’s creation of absolute presidential immunity from criminal prosecution rests on the false and, until Trump v. United States, never asserted premise that the nation’s chief executive might need to engage in criminal conduct to perform the duties and responsibilities of the Office of the Presidency. The ruling is altogether oblivious to the central rationale for the invention of the Office, as laid bare in the Article II duty of the president to “take Care that the Laws be faithfully executed.” Manifestly, presidents are not “faithfully” enforcing the law if they are willfully violating it. Judicial succor for illegal executive action is not what the Framers had in mind when they wrote the Constitution.
The reversal of the Court’s pernicious ruling in Trump v. United States and the recovery of the rule of law, what Judge Luttig rightly calls “the animating principle of the Constitution,” would reinstate the foundation stone of our constitutional system, one that no delegate in the Constitutional Convention or any of the state ratifying conventions ever challenged. James Wilson, the most scholarly of the Framers, and second in importance to James Madison as an architect of the Constitution, told his colleagues that the president is subject to the law, is amenable to the judicial process, and enjoys no “privilege” not possessed by any other citizen. He added that the prerogatives of the Crown provide “no guide” to the creation of a republican form of government. James Iredell of North Carolina – one of the most penetrating theorists of the founding period and, like Wilson, a member of the first Supreme Court – said the president is” triable” under the law.
President Biden’s proposal, profoundly conservative in nature for its efforts to preserve what the Founders bequeathed to the nation, sounds the trumpet on the precise meaning of the rule of law: “there are no kings in America.” But the Trump decision cut the ground from beneath that sacred legal principle by permitting presidents, in Biden’s words, “to violate their oath, flout our laws, and face no consequences.” It’s safe to say that the delegates who drafted the Constitution would not recognize the legal or, for that matter, the political principles set forth in the Court’s betrayal of their work. If we listen carefully, there is in the distance, across a vista of two centuries, the echo of George Washington’s reminder: “An elective monarchy is not why we fought the Revolution.”
There is much work to be done if the Biden initiative is to become the 28th Amendment to the Constitution. The 27th Amendment, which prohibited Congress from increasing or decreasing its pay until another election passed, was introduced by Madison in 1789 as part of the original Bill of Rights, but it received the support of only a half-dozen states and then was essentially ignored for two centuries. Over the years, an occasional state would ratify the proposal until, in 1992, it crossed the ratification line and became part of the Constitution. That amendment took more than 202 years to ratify. Good things are worth waiting for, but the nation cannot wait that long to correct the Court’s damage to the rule of law.
-David Adler