“If you can’t explain it simply, you don’t understand it well enough.” Albert Einstein.
One of the main issues the “Framers of the Constitution” had to address was to write it in such a way as to avoid arcane or legalistic text as its passage depended so much on what the citizens of the new republic understood and agreed with; the issue came down to communication, i.e., keeping it simple. The Framers understood that simplicity provided for a perception of trust in contrast to complexity and ambiguity which provided for a perception of deceit. Constitutional scholars estimated that the reading level required to read and understand the US Constitution is approximately 8th – 11th grade, yet only 23% of Americans have read it; the US Constitution is not a difficult document to read, but is a difficult document to change, which are two things that do not endear it to politicians.
The “Framers of the Constitution” were James Madison, Alexander Hamilton, and John Jay. Madison wrote most of the constitution; all three were authors of the “Federalist Papers”, a publication of essays in support of ratification of the new constitution. When the Continental Convention was called by the Confederation Congress in 1787, the agenda issued for discussion was state versus federal powers, executive powers, representation, commerce, and slavery.
There was a presumption in that agenda regarding executive powers as the Articles of Confederation had no such thing, and the convention was called to address amendments, not to create a new constitution. How that issue was overcome is unclear as the discussions were held in strict confidence and without record, except of course for the new constitution itself. Over time some delegates wrote about what was discussed, and while accounts vary, it was obvious that the “Framers” not only convinced the delegates to consider a new constitution but were tasked to write it.
Except regarding the rights of citizens, the word “immunity” does not appear in the Constitution. When SCOTUS decided to hear the case regarding Trump’s claim of presidential immunity, the only precedent was the 1982 case of Nixon v. Fitzgerald; the court ruled that the president has absolute immunity from civil damages arising from the conduct of their duties, but did not mention criminal charges. What had to be addressed then was what executive duties, responsibilities and powers were as enumerated in the Constitution regarding the actions of a president; it was like an open book test as those things are addressed in Article II. There’s not a lot of such things as the very idea of an executive was troubling to many delegates, so these are limited.
There are 119 pages in the decision, 52 of which consists of the majority opinion by Roberts, and concurring opinions from Thomas and Barret. The dissenting opinion by Sotomayor is 67 pages; apparently someone didn’t get the “keep it simple” memo. The most informative part of the majority opinion, and frankly the part that could have been all that was necessary, came from Roberts:
“The President enjoys no immunity for his unofficial acts, and not everything the President does is official. The President is not above the law. But Congress may not criminalize the President’s conduct in carrying out the responsibilities of the Executive Branch under the Constitution. And the system of separated powers designed by the Framers has always demanded an energetic, independent Executive. The President therefore may not be prosecuted for exercising his core constitutional powers, and he is entitled, at a minimum, to a presumptive immunity from prosecution for all his official acts. That immunity applies equally to all occupants of the Oval Office, regardless of politics, policy, or party.”
Of the criticisms of the decision, there are two that stand out as cases of either failed reading comprehension, or a failure to have read it at all; one is the phrase “official acts” and the other that the president now had immunity from prosecution of criminal acts. The criticism about the phrase “official acts” is that it does not appear in the Constitution; true, the phrase does not appear in the Constitution, but the case here regards immunity for criminal acts. It is not the function of SCOTUS to conduct a trail; their job is guardians and interpreters of the Constitution. In order to decide what actions the president is immune from, they must ground their decision on what the Constitution says the President is permitted to do.
There was another aspect of the case and the decision that does not appear to have received much attention; as Roberts pointed out, subjecting presidential actions to prosecution based on allegations of criminal intent that has yet to be charged, is contrary to the due process protections in the Constitution, and in conflict with the foundational separation-of-powers.
This decision is not a win for Trump as the hysteria in the press would have us believe. Trump is not now immune from criminal prosecution as the only immunity he or any president now has according to this decision is for actions committed in accordance with the executive duties, responsibilities, and powers as enumerated in the Constitution; inciting to riot or conspiring for a fabrication of votes do not qualify. The fact that some of the Trump cases involving such criminal acts are now delayed is for the trail courts and prosecutors to address.
“People who pride themselves on their “complexity” and deride others for being “simplistic” should realize that the truth is often not very complicated. What gets complex is evading the truth.” Thomas Sowell
Libera Voce 