President Trump’s claim that he possesses “complete power to pardon”—to render others and even himself immune from prosecution with a mere proclamation—points to a tension at the very heart of American politics and law, the very heart of widely shared American “civil religion.”
To pardon is an exceptional power of the sovereign, in the sense theorized famously by Carl Schmitt, who, idolizing the role Hitler was carving out for himself in Germany, wrote of the sovereign as a leader whose ability to inflict his will on society was unchecked. Such a concept was essentially theological, Schmitt wrote, not only because the term carried traces of its historical use in discussions of God but, importantly, because the “systematic structure” of the term was theological, evoking a metaphysics of the state that functioned as a kind of religious belief.
Hitler’s totalitarian power, then, involved a “secularized” version of the miraculous: the Führer’s proclamations cut through the constraints of law just as the divine’s interventions defied the rules of nature.
America was born out of rebellion against precisely such a notion of the sovereign, opposing what Schmitt would later recognize as a religious approach to earthly leadership with a religious devotion, instead, to rights. The sovereign monarch was a false and tyrannical god. The Founders and the first generation of patriots who took up arms in opposition to the crown did so under banners raising an “Appeal to Heaven” and with the belief, as expressed in Benjamin Franklin’s proposal for the new country’s Great Seal, that “Rebellion to Tyrants is Obedience to God.”
To whom did the Founders appeal? As Walter McDougall writes in his excellent history of American civil religion, The Tragedy of U.S. Foreign Policy: “The American God had no name and a hundred names.” McDougall argues that the generic quality of the deity—and the wide definition of that concept—proved essential for uniting and maintaining the nation, creating a shared civil religion overlapping with but broader than distinct religions or denominations within such religions:
If Americans had ever fallen to quarreling over the identity of their national God, the Union could not have survived. So the Articles of Confederation and Constitution were silent about religion, not because the American Revolution was secular, but because it was too religious.
Therein lay the secret of the First Amendment. By prohibiting Congress from establishing any particular religion, it silently established a civil religion to which all sectarian believers must bow.
This generic God—in whom, according to our currency, we trust—was in some ways synonymous with and understood as undergirding our rights, with which we were endowed by nature as well as our Creator. While individuals were free to theologize as they wished about the deity referenced in, say, the Declaration of Independence, the American political experiment offered new—and multiple—manifestations of sovereignty, displacing the tyrannical monarchy with a country where each citizen was sovereign. The new nation was not only a democracy wherein the citizens engaged in and exercised sovereignty as a collective, but also a republic under a sovereignty of law. This meant—and means, as the current administration must be reminded—separation of powers.
In America, “sovereignty” was understood as multiple, layered, a matter of negotiation. Look at the star-shaped constellation on our nation’s Great Seal, signifying both America’s place in the firmament of international sovereigns and the distinctive American sovereignty formed by a union of sovereign states and sovereign citizens. So much sovereignty is messy, loud, characterized by contestation and, often, gridlock. It’s the opposite of Carl Schmitt’s Nazi dream. But, since the Founding, it—and the rule of law and separation of powers which maintain it as a lived reality—has been sacred here in these United States.
Politics is about power, but in America, the political and legal systems have been designed to negotiate and redistribute and circumvent power, granting the lowliest and most marginalized citizen the legal status of sovereign and subjecting the most powerful elected official to investigative scrutiny and the full force of the law for wrongdoings. Such officials, after all, are elected: it is “we, the people” who decide the fate of the country.
In the face of radical imbalance of physical power, the state of continual revolution the Founders valorized has been transferred to the processes of citizenship—election, protest, use of the press, legal action—and this situation, this equalization of power, is maintained (tenuously and imperfectly, to be sure) through the rule of law.
Law enshrines and allows for pursuit and protection of our most central values, values which Philip Gorski, in his recent and impassioned defense of American civil religion, American Covenant, expands beyond simply freedom to include equality, “national solidarity (‘We, the People, in order to form a more perfect union’), the common good (or ‘general welfare’) and active citizenship,” suggesting that “civic inclusion and recognition should perhaps be added to our national creed as well.”
Tyranny isn’t merely the opposite of individual freedom—though it is always that for some citizens. Tyranny is a rebuke of our other core values as well, a rejection of the idea of America in favor of the sovereign power of the leader—a monarchic model thrown into the ocean by the Revolution and trounced in its more properly Schmittian form in the last World War.
Trump’s assertion of a power to render himself outside the law is a direct expression of that form of sovereignty at odds with the American experiment. In his recent interview with the New York Times Trump talks as if he considers himself “above the law, and… believes himself to be, through no fault of his own, besieged by internal and external enemies, particularly in the Justice Department and the F.B.I.”
The suggestion of self-pardoning makes explicit the possibility of circumventing the rule of law, understanding the power of the position of president to be, in this important way, without check. Trump’s “cavalier attitude toward this carefully designed system” is part of what Jonathan Chait, in New York magazine, calls “ominous threats emanating from the White House … of an administration mobilizing for war against the rule of law.”
The Russia investigation must be pursued without interference—as a search for facts, an attempt to settle the question of “whether an American president violated his oath to uphold the Constitution by committing criminal acts.” As Richard North Patterson writes in the Boston Globe:
This is not the case of an unconstrained federal government targeting a private citizen or lower officeholder. Trump is the world’s most powerful man; he can direct — or misdirect — the affairs of our country, then use the unique and awesome powers of his office to immunize his actions. The FBI investigation is all that stands between the rule of law and a president seemingly bereft of any belief that his responsibilities transcend himself.
Lack of investment in and respect for such beliefs—beliefs about serving at the will of the American people and under a rule of law designed to equalize sovereign power—leads directly to tyranny, as can be witnessed now in Poland. The country of Kosciuszko and Pulaski is being dragged into dictatorship with new laws rending the judiciary a matter of political appointment, stripping away the separation of power essential for a democratic republic.
Protestors weep in the street and raise mute appeals to heaven, holding copies of the Constitution aloft, like the sacred object it is. But the power of and to the people, enshrined in Constitutional law, can only ever be actualized if it is respected by all citizens, from pauper to president, anonymous worker to world-famous reality television star. Whether President Trump—who began his presidency with a radical departure from and rebuke of the basic tenets of American civil religion—can be brought to respect our country’s values and the systems which maintain them, is a question vital for the survival of the nation.