A king “is appointed to protect his subjects in their lives, properties and laws; for this very end and purpose he has the delegation of power from the people; and he has no just claim to any other power than this.”
Thus wrote the English justice Sir John Fortescue in a book first published in the early 1500s. He states the English case for constitutionalism for the first time in clear and understandable terms. The king has only power delegated by the people and must serve the people and their laws. The king has no power beyond the law and beyond the good of the people.
Fortescue locates the authority for such a constitution in Hebrew Scripture, most notably in Deuteronomy, where the king is required to write for himself a scroll of law to have with him at all times, so that he is in constant fear of violating that Divine law which alone gives him legitimate authority. Though we in England may not be Israel, reasons Fortescue, we still learn from its example. As Hobbes will later argue in a parallel case, if even in a system set up by G-d Himself there are constitutional limits, how much the more so should there be in our own, which does not have such a direct Divine mandate.
The central idea stated powerfully here is that even the most powerful political figure is himself constrained by law. He must be the protector and the servant of both the people and the law; they alone are the sources of his power, which is delegated by them and not inherent.
Fortescue’s heirs in England and Holland looked to the Talmud and to Maimonides’ code of law as well for precedent to bolster the same point. Maimonides sets out in his code that kings are subject to law and can be held accountable by it. Significantly, Maimonides writes that this was not required of kings not of the Davidic line, such as the kings of the Second Temple era. Self-conscious of their lack of full legitimacy, they would react destructively to being held to accountability, and much political chaos could result.
Truly legitimate power, however, accepts and understands that the law governs all. Illegitimate power is power without law, merely on account of having attained a grip by some accident, not by right or by delegation. Power justifies itself, not law, and any challenge is understood only on those terms. Only a truly legitimate ruler accepts the restraints of law.
In the Federalist, Madison, Hamilton, and Jay show their deep fear of tyranny, of a government whose only legitimacy is the power it exercises. They bring examples from classical history of the many times that Greek, Roman, and other states fell down into tyranny, and they point out the misery that accompanied such a descent. Their aim in the Constitution was to set up a system of government reflecting Fortescue’s conception, though without a king or nobility.
In their system, even the most powerful public figure was to be, like the king, under the rule of law. Unlike the king, this figure could be removed from office for a grave violation of law whose effect was to strike at the political system — high crimes or misdemeanors.
But would the process itself simply be the cause of a descent into a struggle for power that paid no heed to law?
To assure otherwise, they made the process daunting — both branches of the legislature had to agree, and the final determination had to be made by a substantial supermajority. But even more important was the very definition of the only things which could legitimately trigger such a removal from office: treason or bribery or other crimes as grave and as political in effect as those.
The very basis of the rule of law is that it is law — known and published, having received the imprimatur of the representatives of the people in accordance with their constitution. No one may be arbitrarily punished simply because they displease powerful people. No one can be punished for something that had never been given force of law, or only made law after the fact.
No single person or single body of people is the law. The law stands over all and without it, there is no legitimate exercise of power.
To pursue an impeachment not based on the violation of a law undermines our Constitution and runs counter to the entire constitutional tradition of English and American law. It is an exercise of power for its own sake. In a word — tyranny. It deserves firm and decisive rejection.
