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Constitutional Conversations
WHITE HOUSE, PUBLIC DOMAIN, VIA WIKIMEDIA COMMONS
Why the Rule of Law Must Endure: Liberty, Justice, and Civilization Require It
BY DAVID ADLER
Presidential elections have consequences, as they say, and national airwaves are filled with voices engaging in speculation and prediction about the legislation, policies, and actions that President-Elect Donald Trump will promote in his second term. Whatever Trump chooses to do, this much should be said about his presidency, as it should be said about any presidency—the nation’s chief executive has, by virtue of his Oath of Office, an obligation to preserve, protect, and defend the Constitution and the rule of law.
For the founders, the rule of law was vitally important to the Republic that they had conceived, and which they hoped would endure for the ages. John Adams, author of the 1780 Massachusetts Constitution—the world’s oldest written constitution—said that our nation was “a government of laws and not of men.”
For Adams, the rule of law was a majestic phrase, reflective of a noble purpose. It represented the North Star for those who had, in the American Revolution, defeated England and shrugged off the arbitrary whims of King George III.
For the founders, the rule of law meant that men are secure in their rights to life, liberty, and property by clear and fair laws, falling equally on all and fairly administered.
The French philosopher, Voltaire— among the most influential of the Enlightenment writers who captivated our founders—explained even before the Revolution, that “Liberty consists of dependence on nothing but law.” He described it as “the greatest benefit I know, and humanity’s most glorious right, which is to depend only on men’s laws and not on their whims.” Voltaire’s ideas, in sync with the emerging constitutional theories in 18th Century England and embraced by contemporary American writers, were clear: law, born of justice and reason, is the basis of civilized society.
Because of their experience under King George I, whom they regarded as a tyrant and—based on their extensive reading of history—which demonstrated the threat that executive power represented to liberty, the Framers of the Constitution sought in their invention of the presidency to subordinate the president to the rule of law, a historical first, of which they were justly proud.
The office, moreover, was sharply limited with powers carefully eked out from the much broader, more general discretionary powers granted to Congress—a decision, James Madison explained, that reflected the fact that in a Republic, the legislature is the first branch of government.
The Framers reinforced the limited role that the president was expected to play in the newly minted scheme of governance by emphasizing the solemn duty to “take care to faithfully execute the laws of the land.” That responsibility—the most important of the president’s duties— combined with the Oath of Office and the Framers’ emphatic rejection of the prerogative power of the British Monarchy, meant the president was, at all times, restrained by the Constitution and the laws of the land. “Our peculiar security,” Jefferson stated, “is the possession of a written Constitution.” The president, like all governmental officials, Jefferson declared, was “bound by the chains of the Constitution,” precisely because the founders were wary of the temptation of those in office to abuse their power.
The written Constitution was the highest expression of the “rule of law,” designed to limit the exercise of authority and to hold governmental agents accountable. Once limits were prescribed, Chief Justice John Marshall wrote in the landmark case of Marbury v. Madison (1803), that they could not “be passed at pleasure.” Marshall added that it was because constitutions were bulwarks against oppression that they “have been regarded with so much reverence.”
The reverence for the Constitution, of which Chief Justice Marshall spoke—the textual strictures imposed on the presidency and the tradition of respect for constitutional and democratic norms— had served, with occasional exceptions, to adequately check the historical exercise of executive power. It was the Watergate Affair and President Richard Nixon’s extraordinary concentration of power in the executive that introduced the American people to the spectre of authoritarianism.
Nixon’s aggrandizement of power, his techniques and practices, if effectively imitated by his successors, would destroy the fabric of trust on which our democracy rests. Nixon ignored, fundamentally, his obligation to obey the Constitution and the laws of the United States. His declaration that, “When the president does it, that means that it is not illegal,” harkens to King Louis XIV, who asserted, “I am the State.” There is for the president a moral duty, indeed, an absolute duty to obey the Constitution. To disobey is to deny the idea of constitutionalism and the idea of law itself.
Liberty, justice, and, indeed, Republics are not saved when a president abandons constitutional principles, traditions, and norms. Those who founded our nation, and those who have sacrificed their lives to defend the rule of law, including those who formed the Greatest Generation and defeated the Axis nations, which sported values and ambitions that posed an existential threat to our democracy, deserve our heart-felt thanks, which are best demonstrated through our continued commitment to the values and principles that truly distinguish America as a “shining city on a hill.” At all events, it remains the duty of American citizens who believe in liberty to fight for legal limits to arbitrary power and the responsibility of the government to the governed. The Spanish artist, Goya, graphically portrayed the consequences of the abandonment of reason in one of his etchings, inscribed, “The sleep of reason brings forth monsters.”
