Freedom Over Despotism – How The Supreme Court Upended Declaration Of Independence

Sujata Gadkar-Wilcox, professor of Legal Studies, Chair of the Department of Justice and Law, Quinnipiac University, is a candidate for State Senate, 22^nd District – Bridgeport, Trumbull, and Monroe. OIB asked her to pen a commentary, see below, in which she blends the meaning of independence with the controversial 6-3 Supreme Court decision regarding presidential power.

While this Fourth of July marks the 248th anniversary of the signing of the Declaration of Independence, the Supreme Court has in the same week just upended the very core of this foundational document by claiming that the President of the United States has absolute immunity for acts that are central to their official presidential duties. The Declaration, on the other hand, claims that a series of abuses of governmental power violates the social contract and makes that government illegitimate because it has not fulfilled its most basic obligation to protect the life, liberty, and pursuit of happiness of its people.

Ironically, a textualist reading of the Declaration itself would give pause to the Supreme Court’s reading of the Constitution in this momentous week. According to the framers, “whenever any Form of Government becomes destructive of these ends,” as they believed was happening because of the official policies of an unaccountable executive, King George III, “it is the Right of the People” to establish a government that is built on “such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.” The Supreme Court’s gift of absolute immunity to President Trump voids the right of the people to ensure that their government abides by the social contract, an imagined concept that requires that a government of the people, for the people, and by the people, protects their most fundamental rights at all times in order to be legitimate.

Throughout the United States and in every state in the Union, on July 4^th, the Declaration of Independence will be read in towns, cities, libraries, and town halls. This historic tradition will take place across the spacious skies, throughout the amber waves of grain, beyond the purple mountain majesties, and from the fruited plains.

The reading of the Declaration, however, is much more than simply a nostalgic and cherished tradition. It is one of the most instrumental practices in the United States to help ensure that we maintain a meaningful democracy. The Declaration concludes with a list of grievances that remind us how precarious our democracy has been under tyrannical rule. The Supreme Court decision highlights even more the need for the people to have a better understanding of how our founding documents reject the idea that anyone is above the law. Demanding instead accountability to the people as its most fundamental principle of governance. The Declaration begins by reminding us that we are all created equal, and that a flourishing democracy depends on the implementation of liberty and justice for all. This is the most important of the passages:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…”

This iconic statement tells us that government is constituted by the consent of the people, which means it must always be accountable to the public. And most importantly, that it can be a “just” government only when it works to secure and preserve the inalienable rights that no government can deprive of any person –  including equality, liberty, and due process.

As a teacher of our founding documents, I believe that the principles incorporated in these documents are fundamental to us even today. — A government made by people, whose powers are derived from their consent – not absolute monarchy. Principles of equality – liberty — and a just government responsible for the public good.

As citizens in a democracy, we should spend more time considering how our historical documents and foundational constitutional principles should be applied in our contemporary society. We should not relegate these discussions to the Supreme Court, because in a democracy our constitutional principles should be subject to vigorous public discussion. Democratic practice means full participation in the meaning of our democracy.

A good question to ask on this Fourth of July is how many of the noted acts of despotism committed by King George in the Declaration would have also been official acts bathed in absolute immunity from liability. For example, in his official capacity, King George has:

• “Refused his Assent to Laws, the most wholesome and necessary for the public good”
• “Forbidden his Governors to pass Laws of immediate and pressing importance”
• “Obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers”
• “Made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries”
• “Affected to render the Military independent of and superior to the Civil power”
• “Quarter[ed] large bodies of armed troops among us”
• “Suspend[ed] our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever”

According to the Supreme Court, do these official governmental acts fall within the gambit of absolute immunity? And if so, would that have meant that the American Revolution was not actually justified? It’s a good thing it was not up to the Supreme Court at that time. We did a have revolution and our most important foundational text, the United States Constitution, begins with a decree of popular sovereignty – “We the People”!

Why is this so important to me? I am a constitutional scholar and the Fourth of July also happens to be my birthday. But the Declaration is particularly meaningful for me, as it is for so many Americans, because I am a patriot and an admirer of the constitutional principles of liberty and justice that define us as Americans. After 248 years, let’s remind ourselves that the Fourth of July is about the people gaining their freedom over despotism, and in doing so staking a claim that people are endowed with certain inalienable rights, which no individual – and no government – has the absolute authority to undermine.