Adler: In response to violations of the Constitution: “Legal history still has its claims”
The Trump administration’s encirclement of the Constitution – laid bare in federal court findings that President Trump has usurped the congressional power of the purse, violated the Take Care Clause, the separation of powers and the Impoundment Act of 1974 – in addition to executive orders that strike at the heart of freedom of the press, freedom of speech and due process, have led readers of this column, alarmed by changing tides, to ask how “constitutional balance can be restored.”
The right questions are prelude to the right answers, most certainly in those instances in which governmental actions stir anxiety, fear and despair.
Students of history and citizens of experience have grasped the fundamental truth of the observation that knowledge is power. Little meaningful work in a republic, including the restoration of constitutional principles, can be accomplished without it. As Justice Felix Frankfurter justly observed, “Legal history still has its claims.”
The crucial first step in righting the Ship of State – assuming the citizenry wishes to be governed by the Constitution – is an accurate recovery and rendition of the work of the Constitutional Convention – the planks, pillars and principles that the Framers envisioned as forming the republic, a vision that was ratified by the sovereign people. Thus, Thomas Jefferson vowed as president to administer the Constitution “according to the safe and honest meaning contemplated by the plain understanding of the people at the time of its adoption – a meaning to be found in the explanations of those who advocated it.”
An accurate rendition of the work of the Convention assumes vital importance when judges, presidents and political actors adduce the meaning of the Constitution from its history and text. This is particularly true when the sitting president asserts unlimited authority under Article II, including authority invoked on the pretense of emergency to ignore and violate the laws in pursuit of his sense of what is good for America.
Executive ascendancy in defiance of republican values and the rule of law assaults the foundations of our system. It cannot be overstated that the Framers did not view the president with awe, but with apprehension. James Wilson spoke for his colleagues in Philadelphia when he observed, “The executive power is better trusted when it has no screen.” The president, he said, “cannot hide either his negligence or inattention,” or, we may add, his aggrandizement of power.
Justice Hugo Black justly declared that the essential purpose of a written constitution was “to make certain that men in power would be governed by law, not the arbitrary fiat of the man or men in power.” Uncurbed executive power would reduce the rule of law to mere fiction.
Manifestly, the Framers sought to limit executive authority, as glimpsed in the availability of impeachment for “usurpation” and “abuse” of power. Impeachment was so important in the process of bringing an errant president to heel that the Convention regarded it as the indispensable breach in the separation of powers. But the concept of a presidential emergency power, sometimes called inherent power – authority to act in defiance of law – renders meaningless the concepts of usurpation and abuse, which is why, precisely, the Framers did not grant the president emergency power.
If, indeed, the principal concern of readers is to restore constitutional principles and revive the Framers’ conception of separation of powers, enumeration of powers, and checks and balances – all necessary, James Madison wrote in Federalist No. 51, to prevent the concentration of power in one branch of government, which they regarded as the essence of tyranny – then the remedy, in part, is refutation of false assertions. “The refutation of an argument,” Chief Justice Thomas McKean declared in the Pennsylvania Ratification Convention, “begets a proof.”
Justifications for far-reaching executive authority, essentially self-serving assertions for untethered presidential power, are demonstrably false. In fact, the Framers created a presidency with sharply limited powers. Misleading representations of the Framers’ discussions, arguments and conclusions, like false accounts of the meaning of the text of the Constitution, as applied to the allocation of powers in both foreign and domestic affairs, require a response lest victory, as the philosopher John Locke wrote, be “adjudged not to him who had truth on his side, but by the last word in the dispute.”
For a nation grounded on the consent of the governed, there is no desirable or effective substitute for truth.
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.