For almost a year I’ve been thinking through an idea that now seems especially timely and relevant in the last six weeks. I think of it as a form of civic sede vacantism. The reference is, ironically, to a strain of hyper-traditionalist Catholic thought which held (still holds) that none of Vatican II canons or the successive Popes counted because they were heretical and heretics. A bit more complicated than that. But details of that really aren’t relevant for us. I just found the defining metaphor or concept helpful. The key is their idea that the papal throne was empty. That’s the meaning of the Latin phrase, sede vacante. My interest and concern with this grew out of my belief that civic democrats in the US have far too great an essentialism about the law and constitutional jurisprudence, especially under the corrupted federal judiciary as it now exists. It breeds a kind of fatalism and passivity which casts a pall over thought and political action.
I know I’ve thrown around a lot of big and perhaps obscure ideas. So let me get down to concrete specifics. In Trump v United States last year the Supreme Court claimed that Presidents have wide immunity from criminal law after they leave the presidency. For many people this was an ‘everything changed’ moment. It did in effect end Trump’s prosecution. But now that’s the law, as so many people I know put it. Only it’s not. This isn’t a decision I disagree with. It’s simply wrong. I’m not going to rehearse all the arguments. To me, among all the other areas of flawed and disingenuous reasoning, we have the simple fact that the authors of the constitution knew precisely how to confer immunity on public officials. They did it with Congress. But again, I’m not trying to rehearse the specific arguments. Others have already made them on the particulars better than I can. I’m saying that we must disengage from the idea that this is what the law is. It’s not. These are fraudulent decisions.
