Is the ruler or head of the executive branch subject to limitations placed on his actions by the law? This question has become more relevant since the terrorist attacks of Sept. 11, 2001, as the presidents of the United States have claimed a widening swath of executive privilege and broader exemptions from civil and international law.
In the Bush and Obama administrations, many of these claims related to the ability to wage what Mr. Bush called the “war on terror,” free from constraints like bans on torture or drone warfare. In the Trump administration, some officials have claimed an even broader exemption for the chief executive. The memo issued by Attorney General William Barr on June 8, 2018, for example, claimed that corruption statutes that do not explicitly refer to the president should be presumed not to bind the president. This would include almost all the criminal codes.
Upholding the authority of the law to restrain the chief executive is a core Christian value.
Rather than being alarmed by this development of unlimited executive power, many Christians in the United States have in fact argued in support of the president’s claims to exemptions. In certain evangelical and Catholic circles, this may be traced to a belief that President Trump is willing to support Christian influence. A recent study by the Pew Research Center showed that many American Christians view their religious beliefs to be in conflict with American culture. However, many of these Christians also believe that Christians have begun to regain influence in the United States thanks to the support of Donald Trump.
For those who hold this view, it is tempting to take the consequentialist view that the administration’s expansion of executive power at the expense of the legal system is theologically justified if Christian influence is restored. In the same Pew study cited above, 76 percent of Protestants and 51 percent of Catholics claimed that the Bible should have a greater influence on laws in the United States than the will of the people. For many with these presuppositions regarding the moral deficiency of the contemporary legal system, there is little to be concerned about in the president’s illicit expansion of executive power and dismissal of the legal limits intended to balance his power. In one of the more prominent examples of this viewpoint, Franklin Graham and Eric Metaxas, two evangelical leaders, described Christian opposition to President Trump as “almost demonic” in a radio interview on Nov. 21, 2019.
President Trump himself spoke to the strength of this conviction on the campaign trail in 2016, when he claimed that “I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn’t lose voters.” Putting aside for a moment the problems with the broader theological connotations of this claim—that Christians need secular rulers to protect them and care for them, rather than depending on the King of Kings and Lord of Lords—this argument also assumes that upholding the authority of the law to restrain the chief executive is not a core Christian value but rather can be sacrificed in the face of contemporary cultural contingencies.
God’s Law, Civil Law
On the contrary, this consequentialist argument runs directly counter to the Christian tradition’s understanding of the value of law and how Christians should seek to uphold and support it. In the early days of the church, patristic theologians sought to uphold the goodness and force of civil authority but not at the expense of granting the ruler absolute authority—the latter stance springing from Roman law, not Scripture. Patristic theologians argued that Paul’s statements in the Book of Romans regarding God’s grant of authority to civil rulers had to be understood as limited by passages such as Acts 5, where Peter and John declare before the Sanhedrin that they must obey the laws of God, not human laws that contradict God’s law.
The Old Testament stories of the heroes of the faith living in exile under a pagan king, especially Daniel, Esther, Shadrach, Meshach and Abednego, provided paradigms of obedience to God’s law when it contradicts the ruler’s command. By the middle ages, Christians shared an almost universal conviction that the possession of divine authority does not justify any action by the prince, but rather that the prince is always subject to question and restraint by divine law, natural law and the customary law of the people.
When considered in an eternal perspective, our job is never to protect our own political power.
Simultaneously, Christian theologians argued that Christians had an obligation to work for the good not only of the heavenly kingdom, but of the country where they lived—a theme scripturally articulated in Jer 29:7. The most famous explication of this concept occurs in St. Augustine’s City of God, where Augustine explains why Christians benefit from peace and stability in the earthly city and should work with the citizens of the earthly city to promote those goals, while never forgetting that their heart and treasure lay in the heavenly city. In the 12th century, St. Thomas Aquinas linked this Christian commitment to the common good with a commitment to the rule of law, defining law itself as an ordinance “for the common good by him who has the care of the community” (Summa Theologiae, I.II Q. 90 A.3).
Therefore, the question as to whether the ruler is bound by laws becomes a question not only of absolute power, but also of whether exceptions to the civil law for the ruler could ever contribute to the common good. Aquinas assumes that these exceptions do not, writing that the prince who wills the common good will understand himself as bound by the law, even though no coercive power exists to enforce that obedience. He reminds those rulers that “the Lord reproaches those who ‘say and do not’; and who ‘bind heavy burdens and lay them on men’s shoulders, but with a finger of their own they will not move them’ (Mt 23:3-4)” (S.T., I.II 96.5 ad 3). Developing these scriptural passages, Aquinas argues that the ruler’s commitment to justice (not burdening others with burdens he is not willing to bear) and care for those whom he serves by law-making is also an important consideration in advancing the common good and thus, according to reason, forecloses the possibility of the ruler receiving a legal exception.
Theologians Against Leviathan
This settled theological consensus was disrupted by the rise of the nation-state at the beginning of the early modern period. Kings and queens of the new European nations now possessed the power to exercise absolute authority in ways that had been inconceivable in early feudal monarchies. Some Christian theologians supported the claims of their own rulers to absolute power, culminating in the work of Thomas Hobbes. Hobbes argued that the peace of the kingdom depended upon the ruler, the “Leviathan” possessing total authority, unchecked by law. Hobbes’s claims were most notoriously revised several centuries later in the controversial political theology of Carl Schmitt, whose argument that the inherent definition of the sovereign is one able to approve exemptions to the law was used to support the Third Reich’s exemption from German civil law.
A recent study by the Pew Research Center showed that many American Christians view their religious beliefs to be in conflict with American culture.
Despite the theological divisions of the Reformation, most Catholic and Protestant theologians condemned this development as a false theological innovation, regarding it as a corrupt understanding of both secular and divine authority. Rather than submitting to the proponents of this absolutist political theory, they sought to retrieve the traditional Christian understanding that rulers are subject to the law. For example, the anonymous author of the Protestant treatise Vindiciae Contra Tyrannos (“Defenses Against Tyrants”) and the great Jesuit theologian Francisco Suárez both drew upon Scripture and tradition to argue that Christians should always understand that rulers are subject to laws enacted by the people that limit their actions and punish their transgressions.
Both authors argue that God’s power to rule is granted first to the people, who then apportion a specific amount to the chief executive. This power can never be fully ceded and is manifested in the people’s ability to make laws that the chief executive can never overrule. Although Suárez and Vindiciae Contra Tyrannos are probably not theological sources familiar to most American Christians, they had a significant influence on John Locke. Locke’s theologically inflected political theory in turn had a great influence, in a more secularized form, upon the framers of the U.S. Declaration of Independence and the Constitution. Thus, not only were these concepts of limitations an important part of the legacy of Christian theology, but they were also incorporated into the secular foundations of our democracy.
Advocates for Justice and the Common Good
The arguments of Suárez and the author of Vindiciae are particularly relevant in our current political situation, where many Christians are concerned about declining influence and question the authority of civil law if it departs from the Bible. This is because both Suárez and the author of Vindiciae made their argument that the civil law should limit executive authority explicitly in contexts where the Christians, who they believed had the proper understanding of Scripture and the common good, were in the minority and even facing persecution. Suárez wrote supporting the authority of civil law over the executive to Catholics in Protestant England and the Vindiciae author to Protestants in Catholic France. Even when the community holding lawmaking authority is predominantly in grave theological error, they both claim that the community’s ability to enact laws that limit the chief executive must be maintained in order for law to actually advance the common good.
Suárez argues that permitting the ruler to claim exemption from the law is not only an abuse of the power God has granted the community, but also weakens the structure of the legal system itself and endangers the law’s ability to govern justly. The author of Vindiciae writes that the people not only have the right to punish the ruler who departs from the law, but also own the responsibility to be forward-thinking in preventing delinquencies from occurring at all. Those entrusted with the people’s authority must exercise particular care, because tyranny is “like a raging fever. At the beginning it is easy to recognize but very difficult to detect; afterwards, it is easy to recognize, but very difficult to cure.”
Both of these authors would argue that the protection of Christian influence in the political or cultural sphere is not worth sacrificing the authority of law or the legal limits placed on an executive. When considered in an eternal perspective, our job is never to protect our own political power. Rather, by being advocates for justice and the common good, we have the possibility of pointing others toward the ultimate good and ultimate arbitrator of justice, free from all fear, because a God who is greater than any earthly ruler is our true protector.