Since his inauguration, President Donald J. Trump has courted controversy by issuing a series of tweets or executive orders. His endorsement of the efficacy of waterboarding, an illegal and degrading form of torture, or the decision to close the US frontiers to citizens of seven predominantly Muslim countries provoked outrage amongst his many opponents. When the courts overturned that order, the President’s condemnation of the judges who had countermanded his action led to further hand-wringing, even if it also provided a perfect illustration of the checks and balances in the American Constitution. President Trump’s attempts to shut the border and his faith in the efficacy of torture form part of what he, and many others, interpret as part of a necessary and on-going struggle against “Islamic Terrorism”.
His immediate predecessors were also responsible for extra-judicial methods, as the continued existence of Guantanamo Bay, which still holds prisoners detained without trial, demonstrates. Nevertheless, that the freely elected head of the world’s most powerful democracy should advocate the methods of the Inquisition is depressing, and it means that hopes of persuading authoritarian regimes in, for example, China, North Korea, Russia, Saudi Arabia, Syria or Turkey, to shy away from waterboarding or any of the other repulsive items in the despot’s repertoire are slim indeed. Of course, those who defend torture or detention without trial will cite the blood-curdling nihilism of ISIS, and claim that they are only targeting the “bad dudes” in order to protect the lives of their fellow citizens. Yet no matter how tempting those arguments might appear, we should not forget that all too often in the past one person’s “bad guy” has been someone else’s “freedom fighter”.
Ultimately President Trump is merely the latest in a long line of rulers to look to the doctrine of raison d’état to justify his stance, and in doing so he unconsciously echoes debates that had a profound influence on the development of the American Constitution and our broader understanding of individual rights. In 1648, after nearly a century of intermittent civil war and sectarian strife, the ministers of the young Louis XIV found themselves once more staring into the abyss. Desperate to uphold the crumbling royal authority, Chancellor Pierre Séguier had sought to persuade an assembly of mutinous judges that if the crown was denied the right to imprison without trial the very existence of the state would be in peril. Better, he argued, “that a hundred innocents suffer than that the state should perish from the impunity of an individual,” a stance that has been echoed globally in the detention of millions on the grounds of suspicion ever since. Séguier’s opponents challenged his claims in the name of public safety, arguing that no one should be subject to punishment without trial, calling instead for a law of habeas corpus. It was only fleetingly established, and Louis XIV would soon lay the foundations of a strong monarchical authority that would endure until the eve of the French Revolution.
Neither Louis XIV, nor his successors, could be described as tyrannical, or even particularly authoritarian, especially when compared to the horrors of the last 100 years, but the Bourbon monarchs did put Séguier’s words into practice and the Bastille became a symbol for the punishment of those who had displeased them. By issuing lettres de cachet, simple written orders signed by the king, individuals could be detained or banished for an indeterminate period, without charge, trial, or hope of legal redress. While generally accepted as a legitimate royal prerogative, perceived abuse of the system in the course of the eighteenth century led to fierce criticism of what, for many, was the arbitrary and despotic treatment of the citizen. Drawing upon the legacy of Séguier’s critics, Montesquieu argued persuasively for the separation of powers, and for an independent judiciary to prevent monarchical power from becoming fickle or capricious. Others inspired by his writings, including the Enlightened jurist and minister, Lamoignon de Malesherbes, or future revolutionaries such as Mirabeau or Billaud-Varenne, denounced lettres de cachet which had become a tool in the hands of ministers, administrators, tax officials and even clerks to imprison those who displeased them in the name of the king.
It was against this background that Voltaire set spines tingling with his tale of the Man in the Iron Mask, the seemingly tragic history of a prince, Louis XIV’s twin or older brother, who had been locked away in diabolical fashion by Mazarin and Anne of Austria. Quite remarkably, there really was a Man in the Iron Mask, or to be more accurate a velvet one, who was imprisoned for decades on the orders of Louis XIV. Although we are sure the victim was not a sibling of the king, historians are still divided about his precise identity and it was that very uncertainty that added to contemporary unease. Fear that an anonymous denunciation might lead to an innocent man or woman suffering the awful fate of the masked prisoner was widespread, and victims, real or imagined, of lettres de cachet helped to reinforce a campaign for their abolition. Central to that struggle was a belief in the separation of powers.
The executive, whether the king, or more commonly those acting in his name, should not act as both judge and jury, and to imprison or banish individuals without trial was an offence to natural rights and the principles of justice and liberty. Thanks to a constitution written against the intellectual background of these debates, the American judiciary will preserve its independence in the new era of the “executive tweet.” Yet Trump’s unorthodox introduction to high office is a reminder that in all too many other societies imprisoning, torturing, or simply refusing freedom of movement is not a clumsy threat, but a daily reality, and, that today, as in the eighteenth century, without the rule of law there is neither justice nor liberty.
Featured image credit: The Bastille in the first days of its demolition. Painting by Hubert Robert, 1789. Public Domain via Wikimedia Commons.