After Justice Amy Coney Barrett sat down for the second day of her Supreme Court confirmation hearings in October 2020, Judiciary Committee Chairman Sen. Lindsey Graham began the proceedings with a softball question: please define—“in English”—the legal concept of “originalism.”Footnote ¹ Justice Barrett quickly responded:

In her book, Listening to the Law, Justice Barrett asserted that originalists “treat historical meaning as determinative,” and in subsequent interviews, she leaned in on this view.Footnote ³

For example, in a conversation at Catholic University law school, Justice Barrett emphasized that, as an originalist, you have to “try to figure out what that text meant at the time that it was ratified, because that’s when it became law.”Footnote ⁴ Granted, Justice Barrett allows that you have to look at “context,” but by “context,” she means what the ratifiers and the people at the time thought about executive power, not what today’s context might say about a particular decision.

Why does this matter? Because “originalism” lies behind the notion that the president has unlimited executive power and the Supreme Court’s 2024 decision granting the president (at least, this president) broad immunity from prosecution.Footnote ⁵ Originalism, in other words, is the theory justifying Trump’s autocracy.

But originalism can also be used for the opposite purpose. Let us grant that we should interpret the Constitution as understood at the time it was created. What was in their collective mind about the limits to executive power as they put quill to paper and ratified the Constitution?

To answer that question, I want to return to “the most famous sermon preached in pre-Revolutionary America”—Jonathan Mayhew’s 1750 A Discourse Concerning Unlimited Submission and Non-Resistance to the Higher Powers: with some reflections on the resistance made to King Charles I. Footnote ⁶

We know that Mayhew’s sermon helped spark the American Revolution because John Adams, the second president, said so. In one letter, he credited “Doctor Jonathan Mayhew” as someone “who had great influence in the Commencement of the Revolution.”Footnote ⁷ In another, Adams singled out Mayhew as the best source on the Revolution’s origins:

Mayhew “was read by every Body” at the time, so Mayhew’s words are exactly what we should turn to determine what the Constitution meant, as Barrett says, “at the time people ratified it.”Footnote ⁹

While the Discourse may represent the intellectual origins of the American Revolution, Mayhew did not say anything new or unprecedented. Instead, Mayhew’s sermon shows how the English principles of limited monarchy, otherwise known as the “Ancient Constitution,” had permeated the Colonies and would form the basis for the Revolution, the Constitution, and the Bill of Rights.

Absolutism certainly had its followers in England throughout the medieval and early modern periods, but most English monarchs stayed within their constitutional limits. Even James VI/I, who claimed that kings “are justly called Gods,” kept within bounds.Footnote ¹⁰ Except for James’s son, Charles I. He tried to rule as an absolute monarch, parliament rebelled, he lost, and in 1649, the king was put on trial and beheaded. But the Republican experiment eventually collapsed, and so, in 1660, the Stuart monarchy was restored. Charles II then established January 30, the day his father was executed, as a holiday marked by sermons praising the “royal martyr,” condemning rebellion, and affirming the principles of divine right monarchy. In this way, absolute monarchy continued to circulate, although in practice, England was a constitutional monarchy in all but name.Footnote ¹¹

But in 1745, the last Stuart, the Catholic James III, tried to depose the Protestant Hanover dynasty. Even though he failed miserably, a number of clerics used the anniversary of Charles I’s execution to deliver sermons reaffirming absolutism, venerating Charles, and unqualifiedly condemning rebellion.Footnote ¹² The same views circulated in the Colonies. For example, the Reverend Charles Brockwell gave a sermon at King’s Chapel, Boston, on January 30, 1749 commemorating the death of the “royal martyr.”Footnote ¹³

While Mayhew was not anyone’s idea of a wild-eyed radical, he was thoroughly schooled in Republican thought and English constitutionalism, and the surge in divine right preaching was too much for him to bear.Footnote ¹⁴ Mayhew then delivered three sermons on politics, the last being A Discourse Concerning Unlimited Submission, which he rushed into print “with some little alterations and additions” (213).Footnote ¹⁵

Mayhew divides his sermon in two. In the first part, Mayhew argues that Paul’s admonition to obey secular power because their authority comes from God (Romans 13:1–8) does not mean unlimited submission to the monarch. While Paul’s statement, “let every soul be subject unto the higher power” (13:1) seems unequivocal, “common sense” (223) says that obedience always has limits. Children must obey their parents, but what if the parents order them to “break the commandments of God” (223)? No one “puts such a sense on these expressions.” “Why then,” Mayhew continues, “should it be supposed that the Apostle designed to teach universal obedience … merely because his precepts are delivered in absolute and unlimited terms” (224)?Footnote ¹⁶

Mayhew sets out two tests for legitimacy. First, every “ordinance of man” has to accord with “the ordinances and commands of God” (225). If a command manifestly contradicts God’s laws, then you are not obligated to obey. Mayhew then adds another criterion: the command must not be inconsistent “with any other higher and antecedent obligations” (225).

We are obligated to obey only those rulers “who actually perform the duty of rulers by exercising a reasonable and just authority for the good of human society” (226; emphasis in the original). So monarchs cannot do whatever they please. Instead, their authority depends on their fulfilling the requirements of their position: they have to “govern well and act agreeably to their office” (226).

But rulers who “injure and oppress their subjects instead of defending their rights and doing them good” forfeit their right to be “honored, obeyed, and rewarded” (228). “Common tyrants and public oppressors” are not “entitled to obedience” (230). Even further, if the sovereign exceeds the limits of their authority by attempting to “take away the properties and lives of their fellow subjects, they may be forcibly resisted” (233; emphasis in the original). Which brings me to the second part of Mayhew’s sermon, when he moves from theory to practice.

Charles “governed in a wild and arbitrary manner, paying no regard to the constitution and the laws of the kingdom by which the power of crown was limited” (239). He jailed his political opponents; taxed “the people without the consent of parliament”; created “arbitrary courts”; refused to hold his servants accountable when Parliament complained about their corruption; and he courted England’s enemies, the Roman Catholics. Worst of all, Charles “asserted an absolute uncontrollable power’; he even claimed it was seditious “to dispute what the King might do” (239, 240). Therefore, Mayhew concluded, Charles deserved to be deposed, tried, and executed mainly because he refused to admit his powers had any limits, that he was accountable only to God.

When Mayhew revised his sermon for publication, he added an extensive note explaining his view of “the English constitution” (241). Kings “hold their title … solely by grant of parliament, i.e. … by the voluntary consent of the people” (241), and their “prerogatives and rights … are stated, defined, and limited by law” (241). If “the prince sets himself up above the law,” as Charles did, he becomes a tyrant and resistance is justified (241). These principles comprise, of course, the Ancient Constitution.Footnote ¹⁷ But then, Mayhew goes one step further: Even God, the “Almighty King is limited by law,” not by acts of Parliament, but “the eternal laws of truth, wisdom, and equity” (242).

Mayhew’s sermon instigated storm of controversy.Footnote ¹⁸ For six months, newspapers printed attacks and defenses.Footnote ¹⁹ The sermon went through two editions in the colonies, and in 1752, was reprinted in England.Footnote ²⁰ But while some passionately disagreed with Mayhew, subsequent events and John Adams’ recollections show that Mayhew’s sermon won the day, not the defenses of Charles’s absolutism.

History, as Mark Twain is reputed to have said, may not repeat itself, but it rhymes, and Mayhew’s list of Charles’ sins bears a more than casual resemblance to Trump’s actions following his second election. Trump has called for his political opponents to be imprisoned, even executed; he has imposed taxes in the form of tariffs without Congress’s consent; he courts America’s enemies (Putin, Kim Jong Un); and he ignores statutes, such as the War Powers Act, when it is convenient. Exactly like Charles, Trump thinks he has, in Mayhew’s phrase, “an absolute uncontrollable power,” and just as Charles claimed it was treason to dispute what he could do, Trump and his lawyers regularly assert that judges have no right to evaluate Trump’s actions.

If Barrett and the other originalists on the Supreme Court were true to their word, they would not have granted Trump broad swaths of immunity from prosecution or allowed Trump to fire independent regulators.Footnote ²¹ The claims by Trump’s appointees that they can ignore judicial rulings equally contradicts Mayhew’s sermon.Footnote ²² The originalist Justices should also be appalled at Trump’s aggrandizing power under the guise of the “unitary executive” theory, which proposes that the President controls just about everything, including the power of the purse, and everyone should be appalled at how the Republican-controlled Congress refuses to stand up for itself. Instead, they have until very recently gleefully ceded all power to Trump, just as the Supreme Court has ruled time and again in Trump’s favor, often through the emergency docket.Footnote ²³

Nonetheless, it’s possible the tide is turning. The majority of the Supreme Court decided in Learning Resources, Inc. v. Trump that the President cannot invoke the International Emergency Economic Powers Act (1977) to impose tariffs without congressional approval, and Justice Gorsuch in his concurring opinion noted that “Americans fought the Revolution in no small part because they believed that only their elected representatives (not the King, not even Parliament) possessed authority to tax them.” Perhaps the Court’s majority concluded that enough is enough, and it’s time to return to the original premises of both the Ancient Constitution and the American Revolution: that power has limits and nobody is above the law. We shall see.