Former constitutional scholar Alan Dershowitz posited on Fox News on November 25 that the “president’s not the king; the president’s far more powerful than the king. The president has the power that kings have never had.”
This is not an argument the former scholar offered for any previous occupant of the White House in Alan Dershowitz’s long life, so one wonders what renders this an argument worth pursuing on Fox News or anywhere that is not a mere public park with wooden crates available to stand on and bellow from. But he did so anyway.
The United States of America has three coequal branches of government to run its operations; our constitutional arguments usually concern which branch ought to run which operation. Our executive branch is one of those three, and we have not been ruled by a king or an emperor for a very long time. America’s last emperor died in 1880, after all, and we have not had a monarch since (or since 1776). (1880? Needle scratches on record as the music stops.)
When Emperor Norton I died in San Francisco in 1880 he left no offspring and no claimants to his (our) throne. We have been a republic ever since, although Alan Dershowitz seems to think that the current executive in the White House has the most legitimate claim to the American throne since Joshua Norton, Emperor of the United States and Protector of Mexico, last occupied it.
Come to think of it, Mr. Dershowitz may be onto something when he asks us to compare the current occupant of the White House and Emperor Norton I.
Joshua Norton was recognized as Emperor only by, well, himself. The citizens of the city of San Francisco humored him, coddled him, and ultimately celebrated him as he paraded about the city in a ratty military uniform and sword. (More than once San Francisco has created a city-wide celebration for one individual’s fantasy: some will remember the heart-warming story of Miles Scott, the five-year-old for whom the Make-A-Wish Foundation created Gotham in San Francisco in 2013 and for one day that entire city participated in his wish to be “Batkid.” Miles Scott is cancer-free now.)
Joshua Norton was going to corner the rice market. There was a shortage of rice in San Francisco and he, well, he knew people. Unfortunately, the day “his” ship arrived in port with a delivery of rice, every other ship that arrived that day also had a full load of rice. The shortage was suddenly over, but Joshua Norton was the only man waiting for his ship to come in who had invested his entire fortune—possibly as much as a quarter-million dollars—on that one shipment. He declared bankruptcy.
He began to file legal proceedings and lawsuits against every institution that he could think was to be blamed for his misfortune, from banks to the United States of America itself. Finally, he declared himself Emperor of the entire continent, America and Mexico.
In 1859, a few years after his abrupt bankruptcy, Joshua Norton, at one time a humble citizen, strode into the offices of the San Francisco Bulletin and requested (demanded) that a proclamation be printed: “At the peremptory request and desire of a large majority of the citizens … I, Joshua Norton … declare and proclaim myself Emperor of these United States.” No citizens had requested this, peremptorily or not, but the newspaper printed it—as a joke—but when Norton saw it in print this only confirmed in his mind that he was indeed Emperor. He began to act like it. San Franciscans slowly began to act like he was their Emperor, too.
He had probably gone insane in his frustration and endless effort, but no man found greater riches.
For the next two decades, citizens of San Francisco treated him with deference and respect: Restaurants reserved seats for him (and his dogs—or any dogs that he adopted on the spot that day and decided looked hungry); the banks issued fake currency that only he could use, and businesses always accepted this money from him; the newspapers printed on their front pages the many decrees that he delivered to them to print and, when they noticed that sales spiked for those particular editions, they sometimes published fake decrees composed by their editorial writers to pump up sales; businesses that he “approved of” received personal seals of approval from him, which they displayed proudly in their shop windows. He walked the streets wearing one of many self-designed uniforms and military-style hats. He carried a sword that was noticeably dented and rusted. Every so often, real military officers at the Presidio would supply him with a clean, new uniform.
Among his many decrees: one that outlawed political parties and a prescient one that required a bridge be built where the Golden Gate Bridge ultimately was built several decades later. When famous people of the day showed up in San Francisco, the powers-that-be made certain that Emperor Norton was included among the members of the official welcoming party.
Some fantasized that he was secretly a millionaire, which may have explained some of their deference to him, but when he dropped dead on a street corner, only five dollars was found on his person and only a few dollars more were found in his room, which was in a local flophouse. A special fund was established to pay for his funeral. More than 10,000 turned out to mourn him.
His loyal subjects, the people of San Francisco, put on his tombstone, “Norton I, Emperor of the United States and Protector of Mexico.”
On November 25, U.S. District Court Judge Ketanji Brown Jackson wrote in a 118-page opinion that former White House counsel Don McGahn must testify to House impeachment investigators, despite orders from the Trump administration that he not cooperate with Congress. “Stated simply, the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings,” the judge wrote. “[I]t goes without saying that the law applies to former White House Counsel Don McGahn, just as it does to other current and former senior-level White House officials. This means that such aides cannot defy a congressional subpoena on the basis of absolute testimonial immunity, even if the President for whom they work (or worked) demands that response.”
The current White House occupant’s claims of something called “absolute immunity” are claims about a concept that does not exist, according to Judge Jackson. The Department of Justice announced on November 26 that it will appeal the decision and requested that the judges’s order that Mr. McGahn testify be paused.
The Alan Dershowitzes of the current moment, the entire Republican Party, and millions of voters are San Francisco in the 1870s, and the current occupant of the White House is our own Emperor Trump I. This time, it is not a sweet or benign eccentric fantasy. This story is charmless and heart-chilling. We need Batkid to save Gotham again.
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