Adler: Liberty, justice and civilization depend on the rule of law
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 European 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, and 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. The Office of the Presidency, 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 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), they could not “be passed at pleasure.” It was because constitutions were bulwarks against oppression, he added, that they “have been regarded with so much reverence.”
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.”
David Adler, Ph.D., is a noted author who lectures nationally and internationally on the Constitution, the Bill of Rights and Presidential power. Adler’s column is supported in part through a grant from Wyoming Humanities funded by the “Why it Matters: Civic and Electoral Participation” initiative, administered by the Federation of State Humanities Councils and funded by Andrew W. Mellon Foundation. Adler can be reached at david.adler@alturasinstitute.com.