The familiar words that open the Declaration of Independence of the United States never lose their resonance. Nearly 250 years have passed since July 4, 1776, and the urgency of this statement only grows in power with each passing day:
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 …
The Declaration continues by presenting an array of indictments rebuking British colonial rule under King George III:
…He has refused his Assent to Laws, the most wholesome and necessary for the public good… He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers. He has made Judges dependent on his Will alone… He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people, and eat out their substance… He has abdicated Government here, by declaring us out of his Protection and waging War against us… already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation… A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.
Those who are attuned to the biblical narrative in the book of Samuel I (Chapter 8) that traces the origins of the ancient Israelite monarchy no doubt notice parallels between Samuel’s hesitance about annointing a king of Israel and the animating issues behind the U.S. Declaration. After a forgettable episode during which Samuel has appointed his two corrupt sons to serve as shoftim (communal leaders, often translated “judges”), the tribal elders make a surprising request, of Samuel not once, but twice:
Appoint a king for us, to govern us like all other nations. (I Samuel 8: 5, repeated in verses 19-20).
The history of the U.S. presidency, like the history of ancient Israelite kings, is one of periodic tests regarding the prescribed limits of power.
Samuel seems well-versed in the behavior of neighboring kings. Perhaps the Egyptian Pharoah who had enslaved the Israelites was on his mind as he responded with alarm:
This will be the practice of the king who will rule over you: He will take your sons and appoint them as his charioteers and horsemen… He will appoint them as his chiefs of thousands and of fifties; or they will have to plow his fields, reap his harvest, and make his weapons and the equipment for his chariots. He will take your daughters as perfumers, cooks, and bakers. He will seize your choice fields, vineyards, and olive groves, and give them to his courtiers… He will take a tenth part of your flocks, and you shall become his slaves. The day will come when you cry out because of the king whom you yourselves have chosen; and Adonai will not answer you on that day. (I Samuel 8: 11-14, 17-18)
In short, a king will confiscate your land, force labor upon his subjects and use them as cannon fodder on his battlefields. In despair, Samuel consults with Adonai, who tells him to not take the people’s response personally but to go along with their idea:
For it is not you that they have rejected; it is Me they have rejected as their king. Like everything else they have done ever since I brought them out of Egypt to this day — forsaking Me and worshiping other gods — so they are doing to you.” (I Samuel 8: 7-8)
God seems to be saying, “Enough already!” Maybe this people requires tougher love than can be provided even by their Divine source, covenantal partner and protector since the time of Abraham. If even their liberator and guide Moses couldn’t deal with them, maybe a potentially ruthless king, something drastic, was needed. But they should know what they may be getting.
Heed their demand; but warn them solemnly and tell them about the practices of any king who will rule over them.” (I Samuel 8:9)
These warnings seem to have no impact on the Israelites, particularly if their new king will “rule over us and go out at our head and fight our battles” (8: 20). All that Samuel can muster in the moment are the words: “All of you go home.” He will soon anoint King Saul, whose term proves to be a story of jealousy, intrigue and misconduct. Ultimately, it will be up to the Prophets — Isaiah, Jeremiah and others — to provide a corrective voice and rebuke and resist the excesses of Israelite (and foreign) rulers.
Fast-forward many centuries to 1776. The signers of the U.S. Declaration of Independence audaciously summarize their grievances. Their assertions echo Samuel’s prophetic warning:
…The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States.
The Colonial American response to tyranny in 1776 had a distinctly Enlightenment flavor. It was to be a republican form of government undergirded by a constitution whose formulation reflected values of reason, humanism, rights of the governed, individual liberty and freedom of expression. The Constitution was, ironically, an outgrowth of several hundred years of British thinking regarding the rule of law, contractual agreement between rulers and the governed, judicial processes and limits to power.
The U.S. Constitution directly responds to the experience of tyrannical rule. Its tri-partite system of Federal government divides authority between three independent branches, each one vested with distinct and unique powers. The pitfalls and abuses of British colonial authority were not to be repeated.
A legislative arm, Congress, would hold the
power to lay and collect taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States…To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years… To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions… To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. (Article 1, Section 8)
An executive arm, the presidency would hold the
Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur… (Article 2, Section 2); recommend to their Consideration such Measures as he shall judge necessary and expedient … receive Ambassadors… he shall take care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.” (Article 2, Section 3).
A judicial system would have
…powers vested in the Supreme Court, and such inferior courts as Congress may from time to time ordain and establish…” (Article 3)
The ultimate rebuke to abusive power, a check on presidential authority, was the “Impeachment for, and Conviction of, Treason, Bribery or other high Crimes and Misdemeanors” and removal from office. (Article 2, Section 4)
The biblical conception, at least in its idealized formulation, placed limits on royal authority. Passages in the book of Deuteronomy, known as Perek Ha-Melekh (17:14-20), suggest a human-Divine model for selecting kings. The king must be “one chosen by Adonai your God” (17:15), implying that the people are ultimately subject to a covenant with the Divine, as is the king.
The biblical king was to be ever mindful that he was as much a servant as ruler and was to have at hand a constant reminder of the limits to his power.
Perek Ha-Melekh draws upon language similar to Samuel’s, yet framed in terms of prohibitions rather than warnings: The king “shall not keep many horses or send people back to Egypt to add to his horses” (17: 16). In addition, the king cannot misuse his office in service of narcissistic desires or accumulation of personal wealth: “[He] shall not have many wives, lest his heart go astray; nor shall he amass silver and gold to excess.” (17:17)
The most unusual directive to the king and a symbolic check on his power appears in verses 17-18:
When he [the king] is seated on his royal throne, he shall have a copy of this Teaching [“Ha-Torah”] written for him on a scroll by the Levitical priests. Let it remain with him and let him read in it all his life, so that he may learn to revere Adonai his God, to observe faithfully every word of this Teaching as well as these laws.
The king is to be ever mindful, at least in theory, that he is as much a servant as ruler and is to have at hand a constant reminder of the limits to his power. Similarly, the Oath Act of 1789, signed by the first president, George Washington, requires every official to swear an oath to uphold the U.S. Constitution. This is their “Torah” that always serves as a guide. Of course, the history of the presidency, like the history of ancient Israelite kings, is one of periodic tests regarding the prescribed limits of power.
The closing section of Perek Ha-Melekh acknowledges that such testing will take place, as it restates the value of circumscribed authority adding an implied warning:
Thus, he will not act haughtily toward his fellows or deviate from the Instruction to the right or to the left, to the end that he and his descendants may reign long in the midst of Israel.” (17:20)
Of course, the reign of the ancient Israelite monarchies was not long. Maybe the narrative of the future kings, in the books of Kings, Chronicles and Prophets is a warning, a throughline that absolute power corrupts and is unsustainable.
Our main source for checks on ancient Israelite royal power is the books of the prophets. Two examples provide a flavor of the prophetic outcry about the abuse of power. Prophets, however, functioned more like the modern press (albeit speaking in the name of God) and at times, performance artists, than like another governmental arm designed to instrumentally constrain those in power.
Isaiah: “. …the faithful city that was filled with justice, where righteousness dwelt, but now murderers… Your rulers are rogues and cronies of thieves, everyone avid for presents and greedy for gifts; they do not judge the case of the orphan, and the widow’s cause never reaches them.” (Isaiah 1:21-23)
Micah: “…you rulers of the House of Jacob, you chiefs of the House of Israel, who detest justice and make crooked all that is straight… her rulers judge for gifts, her priests give rulings for a fee, and her prophets divine for pay… Jerusalem shall become heaps of ruins.” (Micah 3:9-11)
“The faithful city that was filled with justice, where righteousness dwelt, but now murderers: Your rulers are rogues and cronies of thieves, everyone avid for presents and greedy for gifts; they do not judge the case of the orphan, and the widow’s cause never reaches them” (Isaiah 1:21-23).
There have been moments of crisis that test the stability of the constitutional order in the United States: Federal supremacy over the States was challenged when slave-holding states seceded, resulting in a civil war. President Franklin Delano Roosevelt attempted to increase the number of Supreme Court justices. President Richard M. Nixon made extreme claims of executive privilege to withhold incriminating documents. These crises have been resolved to varying degrees: greater (Nixon’s resignation) and lesser (the nullification of Reconstruction in the decade following the Civil War and the rise of Jim Crow), but the constitutional order has generally withstood challenges. Until now, when it remains unclear whether the separation of powers will hold, and the legislative and judicial branches will resist or cede all power to the executive branch.
Crucial Supreme Court decisions have provided watershed moments. Among them are Marbury v. Madison (1803), which affirmed the judiciary as the ultimate arbiter of the constitutionality of laws; and Brown v. Board of Education of Topeka Kansas (1954), which applied the Equal Protection Clause of the Constitution to declare school segregation to be unconstitutional. Three presidents have faced impeachment by Congress.
Yet the principle of the rule of law depends upon the agreement of all three branches of government to provide checks on each other’s powers. Just as an Israelite king could act abusively despite (ideally) holding in hand a Torah delineating the limits to his power, so, too, can a president exert powers that defy the constitutional order if neither Congress nor the courts exert their own powers to restrain the president.
In the U.S. system, power is shaped as much by the politics of the moment as they are by the formal system. The courts lack the power to enforce their rulings against a president who chooses to defy them, stacks the court to gain personally desired rulings, the Congress fails to assert its exclusive authority (the power to declare war), the president abuses the pardon power for personal or political gain or the people elect corrupt officials and then fail to hold them accountable. The system is only as strong to the degree that its leaders uphold its integrity.
The biblical Samuel’s awareness of the danger of absolute power should reverberate throughout the halls of all three branches of the U.S. government and equally to the entire people. We know all too well that the best structured and rational systems alone cannot protect a polity from those who oppose its basic principles, as well as from bad actors and con artists.
Revolutions and wars have been fought. Protests have been mounted to resist the misuse of power. People in the United States have lived through a very imperfect, yet relatively stable, system for most of the century since the New Deal. There is strength in the ideal that the arc of a moral universe bends towards justice, but ultimately, the use or abuse of power lays in the hands and will of the people. It is for this reason that the preamble to the U.S. Constitution opens with an assertion of its core values, linking justice and liberty with common defense and domestic tranquility. We hope that through persistent struggle, tolerance for disappointment and sometimes good timing, we can edge the union towards its fuller realization.
“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”
