Classically, constitutions do two things. They allocate and distribute power, and they provide the means whereby the people can hold that power to account. Power and accountability are what constitutions are all about. In the modern age, a third function has been added—that constitutions also set out (or enumerate) the fundamental rights of citizens—but this third function need not concern us here.

　　In Trump v. United States, the presidential immunity case, the US Supreme Court decided only a small point of law (albeit, a point of law which may turn out to have significant political consequences). The small point of law is that presidents are immune from criminal liability in respect to their official actions. That immunity may be either absolute or it may be presumptive. It is absolute in respect of the president’s exclusive competence; it is presumptive in respect to the president’s other official competences. Presidents are not immune from criminal liability in respect of their personal actions, even personal actions undertaken whilst in office.

　　The reaction to this ruling, both in the dissenting opinion of Justice Sonia Sotomayor and in the reported remarks of President Biden, was outspoken. The president is now “a king above the law,” Sotomayor claimed. President Biden said that the American nation was “founded on the principle that there are no kings” in the country. “No one is above the law,” he said, yet the decision of the court means “there are virtually no limits on what a president may do.”

　　These sorts of remarks are doubly mistaken. They misstate the very limited nature of the court’s ruling in Trump v. US, and they misunderstand the constitutional position of kings.

　　Political actors, whether they obtain office by inheriting it or by being elected to it, may be held to constitutional account in all sorts of ways. In neither the United Kingdom nor the United States is it assumed that the principal method of accountability will be via the courts of law, still less via the criminal courts. In the US Constitution, the president is first and foremost accountable via the ballot box. Once in office, he is primarily accountable not to the judiciary but to the other “political” branch, Congress. It is for Congress to decide whether and how to fund the federal executive that the president leads, and it is for Congress to decide whether to confirm in office the president’s nominees. It is also for Congress to decide whether to pass legislation that accords with—or diverges from—the president’s political priorities and preferences. Nothing in the court’s decision in Trump v. US undermines or undercuts any of these crucial constitutional means whereby presidential power is held to account.

　　In extremis, it is not to the criminal courts that the US Constitution imagines we should turn in the event of presidential “high crimes and misdemeanors,” but to the extraordinary process of impeachment. Under this process, charges are brought by the House of Representatives and placed before the Senate, which will conduct a trial. Conviction requires a two-thirds majority. For an impeachment trial of a president, the Chief Justice of the United States presides. This is the principal formal means by which the US Constitution holds the executive to account and, once again, nothing in the court’s decision in Trump v. US undermines or undercuts the process of impeachment in any way. Moreover, the criminal indictment in Trump v. US related precisely to events in respect of which President Trump had already faced trial for impeachment (the Senate acquitted him in February 2021). In other words, former President Trump had already been held to constitutional account for the actions that lay at the heart of the indictment in this case. Far from being “above the law,” the former president had been subject to the full force of the law.

　　Justice Sotomayor and President Biden invite us to compare the constitutional accountability of presidents with that of kings. So let us take up their invitation and do so—because the comparison is instructive. Contrary to popular mythology, kings (and queens) have never been unaccountable. Assuredly, what we mean by accountability has changed radically over the ages. We no longer think of it in either military or religious terms, but in constitutional and secular terms.

　　Nonetheless, it is worth recalling that in medieval England, kings were accountable principally on the battlefield. They ruled quite literally by the sword—and by the sword they could likewise fall. Once upon a time they really were commanders-in-chief. Thus, Richard II in 1399 lost his crown to Henry IV through force of arms. During the Wars of the Roses in the following century the crown moved from the House of Lancaster to the House of York and back again according not to heredity but to victory in battle. The Tudors came to the throne in 1485 because Henry VII’s forces defeated Richard III at the Battle of Bosworth. (The most dramatic account of this saga, if not always the most accurate, may be found, of course, in Shakespeare’s history plays.)

　　There are constitutional devices which provide for executive accountability in the United States. Nothing in the Supreme Court’s decision in Trump v. US does anything to disturb any of that.

　　The first Stuart king of England (James I) claimed that he ruled by “divine right” and was accountable only to God and to no man or institution on earth. But this was anathema. The Stuart theory, never accepted by the English, was decisively disproved when James’ son (Charles I) lost his head at the end of the Civil War (in 1649). When the monarchy was restored eleven years later it was clear that kings and queens would rule subject to Parliament’s will and according to Parliament’s laws. John Locke gave an authoritative voice to the thinking in his Second Treatise of Government (1690) and by the time Sir William Blackstone came to write his Commentaries on the Laws of England (1765) it was firmly established orthodoxy, accepted by Whigs and Tories alike.

　　Its true that Blackstone said, “The king can do no wrong.” Its also true that a great many people, from Publius in Federalist #69 and #70 to Sotomayor and Biden in 2024, have taken that as their starting point for assuming that the opposite must be true for presidents—because presidents, whatever they are, are most emphatically not kings. But this is the danger of taking a single maxim out of context, for Blackstone carefully explained what he meant. The rule “the king can do no wrong” does not mean that whatever the king does is lawful; still less that there can be no constitutional sanction were the king to exceed or abuse his powers. Rather, it means two things: first, that constitutional wrongdoing cannot be imputed to the king but must be imputed instead to his counsellors. And, second, that the king has no power to do wrong to his subjects.

　　Far from being beyond the reach of constitutional accountability, the history of England makes it abundantly clear that Parliament can, and if necessary will, remove a king who overreaches his authority.

　　Since Elizabeth I’s reign in the sixteenth century, the story of Britain’s constitution has been the struggle to hold royal—or executive—authority to account. Overwhelmingly this has been a parliamentary struggle. In the UK, we have not imagined that the law will be the primary means whereby power will be held to account (least of all the criminal law). Rather, we have imagined—just as the American founders did—that this is a task for a political branch. In the UK, we have done it via two routes. First, we have simply reduced the powers of the monarch, transferring them to ministers. In this sense, that the king can do no wrong has ceased to matter: it is ministers who exercise power, not the monarch, and the British constitution has never known any maxim that “ministers may do no wrong.”

　　In addition, we have insisted that the Crown’s ministers are not merely accountable to Parliament but are drawn directly from Parliament. The king does not choose who his prime minister is: the parliamentary process determines who the prime minister is (as we have just seen, with Sir Keir Starmer’s arrival at 10 Downing Street).

　　Whilst it may formerly have been for the king (or queen) to make treaties or to declare war, these are now tasks for the prime minister and his senior ministerial colleagues in Cabinet. Those ministers are members of the House of Commons and, in order to govern, they require the confidence of the House of Commons. Such confidence can be withdrawn at any moment and, once that happens, the government falls. This is how constitutional accountability works in modern Britain (it is, for example, precisely how Boris Johnson fell as prime minister in 2022).

　　It is not so very different in the United States. Whilst it is true that no president requires the confidence of either the Senate or the House to remain in office, Congress enjoys a broad array of powers to hold the federal executive to account. In extremis, it may impeach. Short of that it may withhold funding, withhold consent for nominees for office, or legislate so as to frustrate the president’s ambitions. These are the constitutional devices, carefully and deliberately set out in the US Constitution by its Founding Fathers, which provide for constitutional accountability in the United States. Nothing in the Supreme Court’s decision in Trump v. US does anything to disturb any of that. The constitutional allocation of power, and the constitutional means whereby power is held to account, remain precisely as they were.

　　The question is not, “Are presidents (or kings) above the law?” The question is, “Are they above the constitution?” And the answer is now—as it has been for centuries—a decisive and emphatic, “No.”