Constitutional Monarchy

[Clete]

I had a completely different post typed up for this, but I had a lightbulb moment, and won't be posting it for now.

Instead, I think I finally understand why this discussion has kept going in circles, and why you feel that I keep failing to address your position.

I have been answering the same underlying disagreement from several different directions, treating each application as though it were a separate argument. You answer one formulation, and I return to the same underlying issue through jurisdiction, accountability, the rule of law, judicial review, wrongful removal, or final authority. From your perspective, that understandably looks repetitive.

So let me reduce my position to its actual foundation.

First, a constitution can assign and define jurisdiction as positive law, but the enactment of that jurisdiction does not, by itself, establish that the jurisdiction is morally rightful. It must be justified by some principle higher than the provision that creates it.

Second, being subject to the Constitution is not identical to being judicially subordinate to another domestic office. Bob's king is legally bound by the Constitution. His authority is limited by it, his unlawful acts remain unlawful, and his unlawful commands need not be obeyed. What he lacks is a superior domestic tribunal capable of prosecuting and removing him.

Third, every earthly hierarchy must terminate somewhere. A removal mechanism does not eliminate final human authority. It relocates it to whoever renders the final judgment against the king.

Everything else I have raised follows from those three claims.

My biblical arguments concern the higher principle that legitimizes jurisdiction.

My rule-of-law argument concerns the distinction between legal subjection and judicial subordination.

My questions about wrongful removal, treason, appeals, succession, and corruption concern where final authority terminates after it has been relocated.

So rather than continuing to answer every individual statement and going around the same circle again, let us identify the foundational disagreement.

Which of those three propositions do you reject, and why? Or where, specifically, do you believe the reasoning from them fails?

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.

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. 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.

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.


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.


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.

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.

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.

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.

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.

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.