Much of the constitutional struggle that engulfed the English-speaking world in the seventeenth century revolved around two fairly simple phrases. One was “no man is above the law,” and the other “the king can do no wrong.” Each of these expressions reflected a fundamentally different notion of the rule of law, and they could not be reconciled.
Post-Restoration Britain found a series of legal fictions to address the problem of misconduct by the state, but in concept this often turned on the notion that the king commanded compliance with the law so that unlawful conduct could not be the king’s.
In America today, the mentality of courtiers has reappeared, and many of them seem bent on reassembling the fragments of that old crown that our ancestors brushed from the head of a Hanoverian usurper. They’re offering that crown up to a new King George. And the new attorney general, barely three months on the job, is installing himself not as a law officer to a republic but as a lackey bent on undoing not one revolution, but three.
What were those legal principles that allowed the Justice Department to find that torture was not torture, and that torture was therefore lawful? When we pull back the curtains, and shine a bright light, we find it rested on the same royal prerogative that Charles Stuart maintained all the way up the steps to the scaffold.
