First, I want to thank you for reducing your position to three foundational premises. This is exactly the sort of discussion I've been hoping we could have. I think we've finally gotten past responding to one another a sentence at a time and have reached the actual point of disagreement.
You're welcome.
Having said that, I reject all three of your premises.
Your first premise is that a constitution may assign jurisdiction, but that jurisdiction is not morally justified simply because the constitution creates it. As far as that goes, I agree, because no constitution can make injustice just merely by declaring it lawful.
Then you actually accept my first premise. What you reject is my application of it.
You identify the rule of law as the higher principle that justifies domestic jurisdiction over the king, yes? If so, that's fine, but the remaining question is whether the rule of law actually requires that arrangement. Naming the principle does not establish the institutional conclusion.
But that principle cuts both ways. You seem to assume that your allocation of jurisdiction is morally justified while mine is not. That is precisely what we're debating. The question is not whether constitutional provisions require moral justification. They do. The question is what moral principle justifies them. My principle is the rule of law. Yours appears to be preserving the king's immunity from domestic prosecution because of a suppose strict necessity to preserve a one way chain of command.
Yes, it cuts both ways. I am not assuming Bob's arrangement is justified while yours is not.
Nor is my principle immunity for its own sake. My position is that rightful jurisdiction must follow from God's moral order, that the Constitution can bind the king without making him judicially subordinate to another domestic office, and that final earthly authority must terminate somewhere.
You must establish that the rule of law requires transferring controlling jurisdiction over the king to those administering the removal process.
I argue that allowing a known murderer to remain in office as the highest judge, immune from prosecution and punishment, is fundamentally inconsistent with justice. If you wish to defend that constitutional arrangement, then the burden is on you to explain why that arrangement is morally superior, not merely why it can be written into a constitution.
I accept that burden. You bear the corresponding burden of showing that domestic removal jurisdiction is morally required and produces the more just arrangement.
Murder deserves punishment. That is not disputed. What is disputed is whether the absence of domestic prosecution makes the entire structure unjust despite the king remaining legally bound, subject to resistance when acting unlawfully, publicly accountable, and ultimately answerable to God.
Describing the arrangement as “allowing” murder does not establish that your remedy is required or morally superior.
Your second premise is where I think we fundamentally diverge.
You continue speaking in terms of one office being "above" another. I don't think that is how constitutional government works.
Constitutions do not establish governments by placing one man over another. They establish offices, assign jurisdictions to those offices, and limit those jurisdictions. The law creates the king's office. The law creates every other office. The law determines what authority each office possesses. That is why I said in my previous post that the jurisdiction is created by the law, not by the king's crimes.
If the constitution grants a particular office jurisdiction to hear criminal charges against the king under narrowly defined circumstances, that does not make the occupants of that office constitutionally superior to the king any more than a jury, in our current system, becomes sovereign because it may convict a governor or a judge becomes sovereign because he may sentence a criminal.
In short, jurisdiction is not superiority. That distinction is, I think, the heart of our disagreement.
That is a fair correction to my wording. Possessing jurisdiction over the king in one matter would not make that office generally sovereign or superior in every constitutional function.
It would, however, make the king judicially subordinate to that office in that matter. And when the matter in question is whether his entire reign continues, the consequence is hardly narrow. The authority to remove him determines whether he may thereafter exercise any power of the crown.
My premise is that legal subjection to the Constitution is distinct from judicial subordination to another domestic office. Your proposal adds the latter.
Your third premise suffers from the same assumption.
You argue that every earthly hierarchy must terminate somewhere and that a removal mechanism merely relocates final authority. I reject the premise because it assumes that exercising final jurisdiction in one narrowly defined matter is the same thing as becoming the supreme constitutional authority.
It is not.
I did not claim that final jurisdiction in one matter makes an office universally supreme. I said that the removal process must terminate in a final human judgment, and whoever renders that judgment possesses final authority in that matter.
Your own description concedes the point:
Our own constitutional system demonstrates the point. Congress may create or abolish judgeships. The President nominates judges. The Senate confirms them. The Supreme Court may invalidate acts of Congress. None of those facts make any one branch generally superior to the others. Each exercises final authority within a jurisdiction assigned by the Constitution.
Final authority may be distributed among jurisdictions, but it still terminates somewhere within each one.
Either the removal judgment can be reversed, in which case final authority lies with whoever can reverse it, or it cannot, in which case the removal authority has the final word.
The Constitution itself is supreme. The offices are not. Whether you agree with our form of government or not, the point stands. That point being that it is not so that earthly hierarchy must terminate somewhere. It doesn't. Playing a single game of rock, paper, scissors proves the premise false.
Rock, paper, scissors is not a hierarchy. It is a cycle of pairwise superiority, and every individual game still terminates in a definite result.
Likewise, constitutional authority may be distributed among several offices without making any one office universally supreme. But every binding judgment must still be rendered by human beings whose decision controls that case.
The Constitution is supreme as the legal standard. It cannot interpret evidence, render judgment, remove the king, or enforce the result. Men do those things. Distributed final authority is still final authority.
Such a power checking mechanism is exactly how I envision a constitutional monarchy. The Constitution would create the king's office, define its powers, limit its authority, and assign narrowly defined jurisdictions to other offices under extraordinary circumstances. None of those offices would become "above" the king. They would simply be exercising the jurisdiction assigned to them by the supreme law of the land.
The triggering circumstances may be narrowly defined, but the consequence is comprehensive. Removing the king determines whether his entire reign continues and whether he may ever again exercise any power of the crown.
Those officials need not become generally sovereign. But their judgment controls the king in the matter governing the continuation of all his authority.
That the Constitution assigns them this jurisdiction identifies its legal source. It does not establish its moral justification.
I think this is why we've spent months talking past one another. You consistently describe my proposal as placing men above the king. I consistently describe it as placing the king beneath the Constitution.
Those are not the same thing! The whole purpose of constitutional government is that no office created by the Constitution stands above the Constitution itself.
“The purpose of a system is what it does.”
You may describe the purpose as placing the king beneath the Constitution, but the Constitution cannot investigate, judge, remove, or execute him. Men must do those things. Your system therefore gives another person or body binding authority over the king that he cannot overrule.
Calling that “placing the king beneath the Constitution” states your justification for the mechanism. It does not change what the mechanism actually does.
That is why I continue to reject Bob's proposal. If the king may knowingly violate the Constitution, commit murder, imprison innocent people, confiscate property contrary to law, and nevertheless remain constitutionally immune from prosecution simply because he occupies the highest office, then the Constitution is no longer governing the king. Rather it is the king that is governing the Constitution.
That does not follow. Violating the Constitution is not the same thing as governing it. Otherwise, every criminal would govern the law he violates.
The king would govern the Constitution if his will determined its content or legal effect, such that he could make murder lawful, alter his constitutional limits by decree, or impose a lawful duty to obey his unconstitutional commands. Bob's king can do none of those things.
The relevant difference is that no domestic court possesses jurisdiction to prosecute him. That concerns enforcement, not whether his will governs the Constitution. Your conclusion still assumes that the Constitution cannot govern the king unless another domestic office can prosecute and remove him. That is precisely the premise in dispute.
