A constitutional amendment to restore rule of law
President Joe Biden’s proposed constitutional amendment, “The No One is Above the Law Amendment,” seeks to restore the fundamental 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 in the performance of his “core powers.”
The decision, severely criticized by scholars and judges of various political stripes, including the conservative heavyweight and revered retired Federal 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 restore a founding principle, one 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. The Biden Amendment would state, emphatically, that “No president is above the law or immune from prosecution for crimes while in office.”
The reversal of the Court’s pernicious ruling in Trump v. United States and the recovery of what Judge Luttig rightly calls “the animating principle of the Constitution,” would reinstate the cornerstone of our constitutional system, one that no delegate in the Constitutional Convention or any of the state ratifying conventions 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 amenable to the judicial process, and enjoyed no “privilege” not possessed by any other citizen. He added that the prerogatives of the Crown, including immunity from prosecution, 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. There is in the distance, across a vista of two centuries, the voice of George Washington: “An elective monarchy is not why we fought the Revolution.”
There is much work to be done if the Biden proposal is to become the 28th Amendment to the Constitution.
Under Article V of the Constitution, the proposal requires the support of two-thirds of each House of Congress. Alternatively, two-thirds of the states could call for a Constitutional Convention, in which the amendment may be proposed. Once a proposed amendment clears this hurdle, then three-fourths of the state legislatures must ratify it. Or, alternatively, Congress could decide that states should create ratifying conventions to consider the proposed amendment.
A lot of work, indeed. And patience, too. The 27th Amendment was introduced in 1789, as part of the original Bill of Rights, but it received the support of only a half-dozen states, and then 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, introduced by Madison, took more than 202 years to ratify. Good things are worth waiting for.
David Adler, Ph.D., is a noted author who lectures nationally and internationally on the Constitution, the Bill of Rights and Presidential power. Adler’s column is supported in part through a grant from Wyoming Humanities funded by the “Why it Matters: Civic and Electoral Participation” initiative, administered by the Federation of State Humanities Councils and funded by Andrew W. Mellon Foundation. Adler can be reached at david.adler@alturasinstitute.com.