The Queen, Our Common Heritage, and the Rule of Law

AMAC Exclusive – By David P. Deavel

Even for those who do not find the British monarchy itself a source of fascination or spiritual uplift, the death of Queen Elizabeth II was a moving moment. This certainly had to do with her maintaining the external dignity we miss in an age of would-be and wannabe statesmen such as Beto O’Rourke and John Fetterman, who dress as if they were sacrificing the important career of rolling joints in their parent’s basements. The Queen’s record of calm courage reminded people of an older, classical, and Christian sense of statesmanship and duty. I believe Americans have reacted as strongly as they did because she was a living reminder of the English legal and constitutional heritage that the American experiment adopted and adapted, and which is under such attack these days. The death of a monarch makes us ask about how healthy our institutions are.

Not everybody could see the dignity or the heroism, despite the fact that an honest look would reveal, as Daniel Berman has chronicled for AMAC Newsline readers, how “Queen Elizabeth Reinvented the British Monarchy as a Global Symbol of Traditional Values.” There was the predictable hatred from woke journalists and academics, such as the Carnegie Mellon professor who tweeted that because Elizabeth had ruled over “a thieving raping genocidal empire,” she wished the Queen “excruciating pain” as she passed from this life.

But what many people started to realize from articles such as Berman’s is that Elizabeth had turned the monarchy “into an international system of soft power” precisely by her not being genocidal, thieving, or (and though the professor didn’t say it, I think it was implied) racist. Elizabeth II was, for historically illiterate academics and journalists (a not insignificant portion of those two professions), the monarch who ruled in the time in which the sunset, despite British branding efforts, on the British Empire. It was during this decolonization that Elizabeth proved her mettle by refusing to countenance the South African Apartheid system, a move which Berman notes lost South Africa as a member of the British Commonwealth. Significantly, South Africans remembered this and returned to the Commonwealth—and thus to calling Elizabeth their queen—upon the defeat of Apartheid.

Her rejection of Apartheid was in 1960—when she was only 34 years old. How did she do it?

Her personal action was based on her understanding of the Anglo-American heritage of law and rights. Many might scoff upon hearing this. Remember the 2018 controversy when then-Attorney General Jeff Sessions spoke to the National Sheriffs Association and referred to the sheriff as a “critical part of the Anglo-American heritage of law enforcement”? Predictably, a two-minutes-of-hate fatwa was called for by left-wing journalists and academics who interpreted “Anglo-American” as “white supremacy.” Conservatives had to remind the public that noted Constitutional law scholar, ahem, Barack Obama also used the term on multiple occasions. Given this reality, even the Washington Post published an article cautioning liberals that such a phrase was not a white supremacist or even controversial in the least in legal circles.

Anglo-American simply means our American system has its roots in the English system, which was itself derived largely from the ancient Roman understanding of the law. That includes offices such as that of a sheriff (derived from the medieval term “shire reeve,” the chief officer in the shire). It also includes the concepts of due process, a presumption of innocence for the accused, and equal justice under the law, which the young queen understood was grossly violated under Apartheid. And above all, it includes the very concept of the rule of law, which is often described in short form as “a government of laws, not men.”

The rule of law, as legal and political scholar James McClellan (1937-2005) described it, is really “a doctrine concerning what the law ought to be—a set of standards, in other words, to which the laws should conform.”  What is that set of standards?  For one thing, to be counted as a law, a rule must conform ultimately to the natural law. This is supposedly a controversial claim today, but it was not to the American colonists. McClellan cites James Otis, whose 1764 The Rights of the British Colonies Asserted and Proved complains of the British Parliament’s forsaking of this duty.

“To say the Parliament is absolute and arbitrary is a contradiction. The Parliament cannot make 2 and 2 [equal] 5. … Parliaments are in all cases to declare what is good for the whole, but it is not the declaration of parliament that makes it so. There must be in every instance a higher authority—God. Should an act of parliament be against any of His natural laws, which are immutably true, their declaration would be contrary to eternal truth, equity and justice, and consequently void.”

Nor was it controversial to figures such as Martin Luther King, Jr., who famously argued, citing Augustine and Aquinas, that an unjust law, meaning one that did not comport with the natural law, was no law at all.

The rule of law also indicates that to be a true law, as McClellan summarizes, any “rule” must be “general, known, and certain.” It must also be “prospective,” for people in the past who did not know about the law should not be held accountable for it. And most of all “it must be applied equally.”

We might add to McClellan’s summary the principle that any true law must be promulgated by a competent authority.

The death of this queen not only makes us sentimental about public figures who are interested more in the “brand,” the success, and the prosperity of their country than their own persons. It makes us think about the threats we face to the rule of law.

How healthy are our institutions? How much do they hold to the rule of law? Let’s start with the promulgation of our laws. Many conservatives have objected for decades that the rulemaking of our administrative agencies does not fit with the American constitutional set-up. Originally set up under the control of the executive branch, they have multiplied and morphed into a largely independent and unaccountable fourth branch of government. This is an ongoing problem, though the recent West Virginia v. EPA case resulted in more scrutiny of whether the rules set by administrative agencies are really what Congress ordered or not. It will take a lot more work to fully return lawmaking to Congress, however.

Are the laws “general, known, and certain”? It’s not clear that they are any of these things. Harvey Silvergate famously argued in his book Three Felonies a Day that in terms of criminal law, we have so many laws on the books that the average professional commits what his title proclaims. This situation of unknown and uncertain legality means that enforcement can be selective. And that is what seems to happen.

Equal justice and the fair applicability of the laws seem in doubt in an age in which big city Democratic district attorneys simply decline to enforce the law. They seem far off when our immigration laws are simply treated as dead letters by the Biden Administration. They seem certainly dead when Hilary Clinton could set up a private server, in violation of the law, and use it to transmit and store classified documents while she was a serving Secretary of State, yet face no real consequences for this action. Certainly no invasive raids of her property. Yet a former president, who has declassified documents already, was subject to an FBI raid that included his wife’s and son’s property.

These are extraordinarily worrying actions. And they are getting worse. On Thursday, the same day that Queen Elizabeth passed, search warrants or subpoenas were executed on dozens of Trump allies. The subpoenas sought communications relating to the 2020 election: certification, alternate electors, fraud, and the January 6 rally. As Red State’s Nick Arama commented in reporting on these raids, “This is an incredible escalation by the Biden Administration and it’s going to be hard to justify that this isn’t an effort to go after and shut down political opponents.” To take this extraordinary step at a time in which a Rasmussen poll shows that 53% of Americans think of the FBI as “Biden’s personal Gestapo” is extremely destructive.

As we have discussed here before, President Biden’s public performances are extraordinarily absurd, but his public threats delivered in his Philadelphia address were really no laughing matter. That he has begun to act on them is even worse.

We mourn Queen Elizabeth because of who she was and what she stood for—courage, dignity, and our legal and constitutional heritage. That Americans’ own aging head of state is also head of a government that seems set on perverting that heritage makes us long for a leadership that would revive the great principles of the law by which our two nations were made great—and can be made great again if only we would return to them.

David P. Deavel is an Associate Professor of Theology at the University of St. Thomas in Houston, Texas, and a Senior Contributor at The Imaginative Conservative. Follow him on Gettr @davidpdeavel.