No More Kings: Time to End Sovereign Immunity
On three major occasions in President Trump’s second term, his opponents, including many elected officials, have taken to the streets under the banner of “No Kings.” And yet just this week, King Charles III spoke before our joint houses of Congress, where his comments about governmental checks and balances drew a standing ovation from everyone there.
A contradiction lies here, between our history and our perception of it. The truth is, the law that made kings untouchable—that “the king can do no wrong”—has never gone away in the United States. Instead, it multiplied. Today we call it “sovereign immunity.”
The Declaration of Independence blamed the King for its grievances, claiming his actions showed an “absolute Despotism” and “absolute Tyranny over these States.” But the taxes it complained about came from Parliament, which in 1688 had subordinated the King’s political role to itself and its Prime Minister. True, the monarch retained a total legislative veto (among other powers), but it last invoked that power in 1708. Colonial complaints about the King not recognizing colonial legislatures suggest the opposite of the grievance—a monarchical commitment against tyranny, by declining to override and usurp Parliament’s powers via royal whim.
Describing the 1789 Constitution, Alexander Hamilton wrote that, except for a few important “particulars, the power of the President will resemble equally that of the king of Great Britain.” Some changes shed the aristocracy; others infused more checks and balances, like making the veto power conditional. As for the right of kings, Hamilton argued that the impeachment power of Congress addressed it, because an impeached president would be subject to prosecution “in the ordinary course of law.” Unfortunately for us, history did not walk that line.
The 1789 Constitution also split sovereign power between federal and state governments. These twin powers then pulled a trick: they successfully argued that the special right of kings had transferred to them. Courts applied this special right to political subdivisions, like counties and municipalities, and to those who act on their behalf, like legislators, judges, clerks, bureaucrats, and police. Tocqueville thought these subdivisions “mitigat[ed] tyranny,” viewing “townships, municipal bodies, and counties” as “concealed break-waters, which check or part the tide of popular excitement.” But by permitting them........
