The ancient legend of the Fisher King, which formed much of the basis for T.S. Eliot’s epic poem, The Wasteland, is one of the lesser known tales in the quest stories of King Arthur and his Round Table. Like many of the pieces brought together in the Arthurian legend, the story came from a much earlier time and originated as a kind of warning about how the hubris of a ruler can create a great threat to a nation.
In the tale, the king claims he is equal to the gods and excessively exercises his seemingly limitless personal power to do great harm. As punishment, he is grievously wounded by the gods and reduced to fishing for his sustenance. In later Arthurian versions, the king’s wound is delivered by a knight as punishment for the king’s grievous sins against God and for failing to sufficiently guard the Holy Grail. The wound is in the “thigh” or “groin” symbolizing a loss of ability to reproduce, or to be fertile. Most importantly, in all the tales, because of the king’s deterioration, his entire land is also sickened and all life within it withers and dies. The land can only be healed if the king is cured or replaced.
The power of the story lies in the connection between the king’s illness and the ill health of the land. Unfortunately, we are now experiencing this infection in our own land. Once the shining beacon of freedom around the world, a country striving for a more egalitarian balance in our own populace, our nation now grows more sickly by the day, as fear, poverty, and illnesses long thought to have been cured, increase, along with claims of “superiority” by one group over another.
How shall we recover? Remove the sick king and the land begins to heal.
Shadows in the Constitution
In Texas, in the late 1960s, the case that would come to be known as Roe v Wade was taking shape for filing. As arguments for the brief were crystalizing, there arose a fundamental disagreement among feminist legal groups over whether it should challenge the criminalization of abortion under the equal protection theory of the 14th amendment or under a more general right to privacy found in the protection of “liberty” in that clause, as well as throughout the Bill of Rights.
By the time it had worked its way up to the Supreme Court in 1973, the right to privacy argument had won out.
The problem with using the equal protection approach stemmed from the fact that the courts had already held that it applied only when two things were “similarly situated”. Since the court had also opined that men and women were clearly not situated similarly, equal protection theory could not be used to end bans on abortion. Privacy, however, had already been found to be protected, in a case related to the right to obtain birth control. Earlier, Justice Brandeis had co-authored an article in the Harvard Law Review identifying a right to privacy, though not explicitly stated in the Constitution, indicating it could be found in the “penumbra” (shadow) of the Bill of Rights and the Liberty clause of the 14th Amendment. This had led to the use of the theory in the birth control case.
In the end, Roe went with the privacy argument and, in 1973, the landmark case was successful. As we now know, almost fifty years later, the Supreme Court said no to the shadow theory and overturned Roe.
So, you might ask, just where did the Court “find” the protection of immunity for the president for present and future crimes, since the word “immunity” is found nowhere in the Constitution? The court seemed to draw its conclusion out of the “shadows” of the doctrine of Separation of Powers, declaring that the president must be allowed to carry out his official acts without interference or prosecution by the other branches of government, legislative or judicial.
I like the idea, personally, that the Constitution contains a number of coherent concepts that bind together its overarching protections for the people. Not so much its protections of the President. The question remains: does it make legal sense to find sweeping rights in the “shadows” or does that leave too much up to the make-up of the court at any given time? I don’t normally leave these notes with a question, but, in this case, it seems right to say, here’s something to chew on…
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