A Government of Laws, Not Men

I suspect that nearly all readers of American Greatness are familiar with John Adams’ famous statement about the rule of law in his Constitution for the Commonwealth of Massachusetts, approved by the voters in 1780. “In the government of this commonwealth,” Adams wrote, “the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.”

Adams memorably articulated a sentiment that had long been recognized as essential to the preservation of political liberty. Every part of his formulation is worth bearing in mind.

But at the present moment, it is Adams’ third admonition concerning the judiciary that compels our attention. Consider the actions by various district court judges in response to Donald Trump’s two executive orders seeking to ban travel to the United States from certain countries: Are they not instances of the judiciary seeking to exercise powers that, according to statute and the Constitution, belong to the executive branch?

Glancing at the alarming disgorgement of commentary on the subject in these last few weeks as Trump’s original travel ban and, just a few days ago, his revised travel ban were subject to nationwide temporary restraining orders, I conclude that that question will be a long time in being settled, if it ever is.

Do you really believe that the travel ban violates the Establishment Clause of the First Amendment? I don’t, but even lawyers have to eat, so I suppose we’ll have to sit back as acres of wood pulp are darkened for the publication of their hermeneutical ingenuity explaining how the president’s efforts to keep the country safe are a violation of due process, equal protection, the Establishment Clause, or some other innocent but abused phrase from the Constitution.

Let’s let that play out. What has me murmuring under my breath at the moment is Adams’ concluding exhortation, that the separation of powers he outlines might conduce to the desirable end of a government ruled by laws, not men.

Generally, that famous phrase—a government of laws not men—is taken as naming a prophylactic against capricious or arbitrary rule by individuals. Even the sovereign, it was said, is subject to the law. Recognition of that fact was at the center of what made Magna Carta “magna.” But the response to Trump’s travel bans—as indeed, several other responses to his election—reminded me that there is another, just as important side to the desideratum “a government of laws not men.”

What does it mean that several hundred thousand females converge on Washington, D.C., in pink hats and vagina costumes to whine that Donald Trump is “not our president”? What does it mean that on college campuses across the country, students, often abetted by faculty and the occasional outside agitator, protest that Trump is “illegitimate”? That various pundits, some on the Right as well as the Left, warn against “normalizing” Donald Trump? And, perhaps most worrisome, what does it mean that a smattering of judges across the country argue that the president’s executive orders are illegitimate, unconstitutional because (cutting to the chase) they are this president’s orders?

As Josh Blackman has pointed out in a series of essays at the Lawfare weblog, the basic legal arguments made against Trump’s travel bans turn as much on their being promulgated by Donald Trump as on any constitutional objections. In “The Legality of the 3/6/17 Executive Order, Part III: The Establishment Clause,” for example, he shows how Judge Leonie Brinkema, writing in February in Aziz v. Trump, made Donald Trump, not the legality of his actions, the main issue. “At its heart,” Blackman writes,

the court’s Establishment Clause analysis isn’t about the executive order. Rather, it is about the person who signed it. In a section titled “The President’s Public Comments,” the court lists several statements made by Donald Trump “on the subject of immigration to the United States by Muslims.” Consider the level of generality. These were not statements concerning the executive order itself, or even statements about the executive order ultimately adopted. They are statements about Donald Trump’s personal views on “the subject of immigration to the United States by Muslims.”

At the end of the day, Blackman points out, taking a phrase from the landmark case McCreary County v. ACLU,

Judge Brinkema has applied a “forever taint” not to the executive order, but to Donald Trump himself. For example, the government defended the selection of the seven nations in the initial executive order because President Obama approved a law that singled out the same seven nations for “special scrutiny” under the visa waiver program. Judge Brinkema rejected this reasoning: “Absent the direct evidence of animus presented by the Commonwealth, singling out these countries for additional scrutiny might not raise Establishment Clause concerns; however, with that direct evidence, a different picture emerges.” That is, if Barack Obama selected these seven countries for extreme vetting, it would be lawful, because he lacks the animus. But because Donald Trump had that animus, it would be unlawful. No matter that Trump excluded forty-three other Muslim-majority nations that account for 90 percent of the global Muslim population. Even though three of the included nations are state-sponsors of terrorism! It will always a “Muslim ban” because of comments he made on the O’Reilly Factor in 2011, a policy he adopted in 2015, and abandoned after his lawyers told him it was illegal. She admits as much. “A person,” she writes, “is not made brand new simply by taking the oath of office.” Not the policy. The person. Trump.

Thus we see another way in which the principle of “a government of laws not men” can be violated. It used to be that we were on the lookout for individuals arrogating to themselves the power of the law. Now we find individuals denying our lawfully elected representatives the legitimacy to exercise their rightful authority.

We know from history that the first sort of violation is an invitation to tyranny. Some otherwise intelligent people seem not to appreciate how the latter is an invitation to anarchy and mob rule.

It is too early, I think, to say how this will end. Perhaps, as I hope, the odor of insurrection will dissipate and President Trump can go about the nation’s business with the presumption of legitimacy he deserves. But that may not happen. In which case, this observation from Alexander Bickel’s The Least Dangerous Branch: The Supreme Court at the Bar of Politics (1962) is pertinent: “Enforcement crises must be resolved by the use of the minimum force necessary, but above all decisively and promptly, so that the futility of resistance is never in the slightest doubt. Those who pass from litigation and political obstruction to overt insurrection must not be led to expect that will be negotiated with.”

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57 responses to “A Government of Laws, Not Men”

  1. “A Government of Laws, Not Men.”
    NO. Unto Death NO.

    That time is long past and dead. The Left killed it. More importantly the Left seized that territory and owns it utterly. The way of the Law is shut. It is the way of our meekly laying down to our own genocide. We choose Life and Power for that is where we are strong. Not words and weakness.

    You may have your scribblings we will have the power and survival.

    • I have always advocated a nation-wide Lawyer Season. No bag limit, open 24/7, 365 days a year, any and all weapons allowed, up to and including rocket launchers and explosives.

      • fine by me. I’d also favor paying a bounty on them.

        I seem to recall that for the most, there is no legal requirement for judges to be lawyers at all. How did the louts of the bar associations acquire all this power?

  2. If we didn’t have such a bunch of feckless establishment crapweasels in the majority in the House and Senate who would cheerfully join the Democrats in an impeachment effort, I’d suggest that Trump tell the courts to eff off. Instead, we must wait for the (inevitable) next Muslim terrorist attack. Then maybe he can do that.

    • Impeachment is only a matter of time he is making a joke of the rule of law.

      • Right, by forcing liberal judges to constantly go outside their actual powers to make decisions they aren’t entitled to make? He is inciting a riot by forcing rioters to punch him? You have things exactly and laughably backwards.

      • Nope it is you who are devoid of fact and are under the spell of false information, sorry

      • Wow! Name one time he has made “a joke of the rule of law.” That would be your hero, Barack Obama, who did that.

      • He was not my hero and he may have overstepped as well nothing like Trump is doing so lets keep it REAL

  3. A very thoughtful article by Roger Kimball. I am afraid that our judiciary has become almost irretrievably non-judicial. The eventual outcome of this will be President Trump appointing HIS type of conservative judges who will interpret the Constitution HIS way. Liberal slanting of the law will lead to conservative slanting of the law. Somehow, true justice must be restored. HOW?

    • Forget justice, We’re into survival.
      yes I know it’s not immediate and existential. That’s too late.
      The courts are our ENEMIES and mortal ones, genocidal chaos spreading ones at that.
      Forget the priests scribblings. Politics is POWER and we must act while we have it.

    • If the lawlessness becomes rampant enough, martial law will be declared.

    • Ricocart, Historically, conservative judges do just what John Adams says, they adjudicate/interpret the law, they don’t become mini-exutives and they don’t legislate as the more liberal justices do when they interpret the law the way they PERSONALLY see fit.

      One can think that the conservative president will appoint conservative jurists and the liberal POTUS will appoint liberal jurists, but at the end of the day, the liberal jurist is more likely to re-legislate Roe V. Wade when it is NONE OF HIS BUSINESS/NOT HIS JOB AT ALL.

      The conservative jurists (who may not agree with Roe v. Wade) knows that IT IS LAW and it has to go through the amendment process to be repealed. The Supreme Court judges cannot do that.

      Wouldn’t you rather have a conservative judge sitting on that bench than someone who is going to, like John Roberts with the ACA, try to legislate from the SCOTUS bench? If I were a supporter of Roe v. Wade, I’d be less afraid of the strict constructionist jurist who despite personal desires, would NOT ever ‘play politics’ with our Constitution, than I would fear the efforts of the liberal jurist who is ready to cut his legislative teeth on your Constitution.

    • You really consider conservative slanting of the law a concern?
      That’s like looking up at a partly cloudy sky hoping it doesn’t sprinkle on your parade while Oroville dam just collapsed a mile upstream.
      In fact we have insufficient conservative slanting of the law.
      It would take decades of ignoring preposterous precedents just to get us back to a constitutional footing and our guys very seldom ignore precedents no matter how extra constitutional and ludicrous.

  4. The essential question seems to be: What do we do when the Courts are the lawbreakers? When they use their authority for purely political obstruction? When they increase the threats to life for the very citizens (and no others) whose interests they are supposed to protect? The hysterical Left seems to have no respect for what happens if you destroy comity among citizens. If you extinguish respect for Law. This is a very dangerous time and circumstance. Do the judges believe that people will forget the face of those who led us to descend to chaos? Incredible stupidity.

    • Another problem is that we have allowed the judiciary at every level to be the law makers. If there is no action to reverse this situation the country will diminish and become a second rate nation.

    • We should ignore these treasonous judges and remove them by impeachment
      or arrest.

      • Or by dissolution of their “tribunals” – a power granted to Congress by the Constitution. It would serve notice on all activist judges if Congress served on the 9th Circus its justly earned reward.

  5. I think you are seeing judicial nullification. Of course if the judiciary is acting to nullify the law, then there isn’t any law to speak of. Judicial nullification is based on the conceit that we have been indoctrinated to be uncomfortable attacking the judiciary, which by sleight of hand has been substituted for the Constitution and the rule of law itself. But a lawless judiciary is the antithesis of the rule of law. The judiciiary wil either get a clue and police itself or it will be de-legeitimized. It just takes one Jacksonian moment.

    • The only problem with the Jackson precedent is in that instance the court ruling was reasonable, lawful, and constitutional, the Cherokees had a solid case, but Jackson did not like it. So in the Jackson precedent it was Jackson who was acting in a lawless manner when he refused to obey the court decision.

  6. It is long past time for an Article 5 convention. Term limits for anyone associated with the Federal Government. No lifetime anything, whether elected or appointed.

    • Term limits for lower court federal judges is statutory, not constitutional.

      • As long as the district courts are Article III judges, their term is for life under the Constitution.

      • My research found that the Constitution only requires that the Supreme Court judges have lifetime appointments.

      • “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour”
        That sounds like both supreme court justices and any federal judge, basically any article 3 judge, serves for life. Do you have a quote from the actual constitution to support your claim that supreme court justices serve for life but other fed judges dont?

      • Here is the actual text from Article III, section 1:
        “The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.”

        “during good behavior” in the Constitution has been interpreted as an effective lifetime appointment for all Article III judges – for both the “supreme” as well as the “inferior” courts established by Congress – because the Constitution does not state a time limit or number of years.

        So, your research is incorrect as the Constitution is currently read (and as it has been for well over 200 years at this point).

      • You conveniently overlooked this part : “The judicial Power of the United States, shall
        be vested in one supreme Court, and in such inferior Courts as the
        Congress may from time to time ordain and establish.”

      • There is nothing in that provision about the term of the Article III judge. See also, Federalist No. 78 (By making the tenure of federal judges permanent and not temporary, Hamilton argued, the Constitution ensures that judges will not be changed according to the interests or whims of another branch of government.)

      • The key words here being ‘during good behavior’ and the important thing being who gets to decide what said ‘good behavior’ is.

      • The Samual Chase precedent is fairly clear – the House can impeach and the Senate try the issue as to whether a judge has exhibited “good behavior”. There effectively is no other mechanism at this time.

      • Maybe it’s time to change that. Legally, of course.

  7. If they had the power these leftists leftists would kill half the population. Never forget this reality regarding the rule of man.

  8. Seems the comments below are full of anarchists…..

    • You are an slime ball attorney (but I repeat myself), of course. Sure, sure, you can’t have ‘law’ without hordes of lawyers to explain it to you. Anything else is simply anarchy. Parasite.

      • Yall’ be dealt with in time, enjoy your 15 mins of fame…..

  9. These so-called judges are supposed to make decisions based on the facts and the law—-not on speculation!

    President Trump stands behind what’s good for America and we should stand behind him!

    We don’t need dictators in black robes telling us what to do!

    America First!

    • Well, apparently this latest “so-called” judge from Hawaii, went to Havvadd Law with Barry and studied “anti-Constitutional” law. What I don’t understand is how these pissants can overrule the President with “their” opinion? WTF?

  10. America no longer even still exists as a country. We lack a common reality and without something as basic as that it’s obviously not possible to have any kind of functional society. I think the best we can hope for is an extremely dysfunctional society, boiling with hate, that somehow manages to stagger along without a complete collapse into a shooting war. Hopefully fate will be kind to us and spare us from the abyss.

    Last year I read that millionaires are fleeing from Chicago because they fear crime and race riots. I told a Vietnamese friend at work about this and he said if he was a rich white guy he’d go to Asia to live because white people are respected in Asia and they’re not here. I probably would go to Asia to live if I was rich but I can’t even get out of Chicago.

    A couple of months ago this same friend sent me a YouTube video called “The lost streets of Chicago-BBC News”. He lives on the southwest side and I live on the northwest side. The video is about the incredibly severe social breakdown on the south and west sides of Chicago. Every time I watch it I feel shocked. My friend said he only lives a twenty minute drive from these areas. I think if he was rich he’d go to Asia too.

    • If you want peace in Chicago you have to limit the growth of the Negro population. Negro culture is culturally toxic and a threat to civility and peace everywhere.

  11. What is to be debated and adjudicated by the courts is between the 4 sides of the document. NOT external forces, not things Mr. Trump said on the O’Reilly factor 6
    years ago. THAT is not separating the legislative from the executive, from the judicial! I should have known that non-partisan did not really mean non-partisan when I saw the sign to protect roe v. wade on the top right.

  12. Sanctuary cities are treason. These judges are upholding treason and telling the democratically elected president of the United States that he has no constitutional right enforce the nation’s immigration laws.

  13. The answer is impeachment and also the disbarment of the lawyers of the groups that sued to have the order overturned.

  14. We have too many instances where the judiciary acts as the superior power over the the other two branches of our government. It is way past time for them to be made equal again. When Congress passes a law, the judiciary should not be allowed to repeal it unless it clearly violates a specific clause in our Constitution. The judiciary, instead, acts like the enforcer of the political party. Likewise, the judiciary should not be allowed to invent new rights out of thin air. With this immigration question, the judiciary has clearly overstepped it’s powers. Term limits are now necessary as impeachment is almost impossible to exercise.

    • Don’t know if you caught this but when the 3 justices of the 9th circuit ruled on it and Trump didn’t back down they requested that all 120+ justices on that court convene to rule on it, assuming safety in numbers. Obviously they expected them to back that ruling. ooops. The other justices respectfully declined leaving those three headed for the SCOTUS with an unconstitutional t*rd in serious need of polishing.

      Meanwhile, when Trump issued his second order and the Hawaiian judge blocked it, Trump still didn’t back down so that judge asked the 9th circuit to back HIS ruling. Their silence has again been deafening.

      Soooo adding things up: Looks like we’re headed for a shoot out at the Ochit corral. Much as congress would love to stay out of this, if they don’t step up and get control of the judiciary the 2018 election is gonna make Bunker Hill look like a Sunday picnic.

    • Gay marriage is not the law of the land as the Supreme court can’t make laws.

  15. It seems we are seeing every fig leaf, every coat of political varnish, stripped way from our politics, leaving visible for the first time in a long time what Carl Schmitt described as the fundamental political relation: that between friend and enemy. The Left’s politics, which it practices from within every institution where it has control, from college campuses to federal district and appeals courts, is based solely on the concept that anyone to the right–which includes what used to be called the center–is an enemy, and should be dealt with as such; no more and no less.

    Additionally, the concept of the rule of law ultimately founders where the laws are too numerous, as they are here. Tocqueville saw this coming nearly 200 years ago when he wrote of the network of ever more minute laws and rules that would cover society and suffocate it. Too many laws gives too many people too much incentive to apply them too many times and in too many ways. Not to speak of the administrative state in which we are trapped, we live in a nation where the thousands of laws, lawyers, law professors and judges arise every day believing that some law somewhere must be applied to somebody. Progressives call this productivity. I call it despotism.

  16. Trump should give SCOTUS ten days to act before disregarding the lower courts actions and enforcing his order.

    If SCOTUS allows the lower courts to continue this lunacy, Congress should strip lower courts of jurisdiction and require all SIMILAR immigration matters to be heard by SCOTUS. Of course, this will not happen, because the reality is it is Trump vs. the swamp and the GOPe are gatekeepers of the swamp.

    • Actually, the average Federal district court judge shouldn’t be hearing this matter. Congress should specify only one district – like, say, the Federal District – has jurisdiction over law suits challenging the propriety of an executive order. That at least should reduce the unseemly venue shopping and still allow meaningful judicial review (and far from the 9th circuit).

  17. I recall former president obama (holy cow is it nice to write that) simply ignored rulings he didn’t like, or acted as if they were never rendered. Is there no way President Trump can simply state that because a ruling judge is so biased that his or her opinion can be ignored? I admit this is a dangerous path, but isn’t it equally dangerous to allow blatantly partisan judges to rule with no regard for the law??

  18. Something to ponder: Can a “Nation of laws” also be “The land of the free”?

    • Here’s a passage from a book (rather long but I don’t like to remove ‘context’ when quoting as it can be disingenuous at times to omit). Bolding is mine.
      I think the question you ask -and answers- are thoroughly (and profoundly) ‘involved’ in the foundations of civilization.

      From: David Horowitz ‘Radical Son’ The Free Press 1997 pp 396-397
      “In the Sixties, we had scorned liberals because they believed in the “process” -the rule of law that created obstacles to our radical agendas. Now, these same principles appeared to me the essential premise of civil freedoms. It was the procedural orders that constrained human passions, protected minorities, and made liberty possible… I felt that the core politics… I had embraced were classically liberal.
      In December 1992, I was invited to give a lecture at the Heritage Foundation, the right’s most important policy think-tank. The subject was “Are We Conservatives?”. The very posing of the question was interesting. It was difficult, for example, to imagine a parallel forum asking “Are We Progressives?” I explained this anomaly to my audience by pointing out that conservatism was an attitude about the lessons of an actual past. By contrast, the attention of progressives was directed towards an imagined future. Conservatism was an attitude of caution based on a sense of human limits and what politics could accomplish. To ask whether conservatives were conservative was to ask a practical question about whether particular institutions were worth preserving. In the last thirty years, the American political landscape had changed dramatically, so that conservatives found themselves opposing many aspects of a culture with which they could no longer identify. Thus the answer to the question posed was “No.” In some sense we were not conservatives, but rebels against the dominant culture.
      The reason why progressives were unable to ask a similar question went to the root of their intolerant attitudes. Because the outlook of progressives was based on an idea of a liberated future, there was no way to disagree with them without appearing to oppose what was decent and humane. To criticize the radical project placed one in opposition to a world in which social justice and harmony would prevail. That was why the question “Are We Progressives?” was impossible for progressives to ask, and why the question I had once asked my comrades about the practicality of socialism was viewed by them as a counterrevolutionary threat.
      In my lecture, I tried to identify the core of my new beliefs by focusing on the issues of equality and freedom that had once inspired me as a radical. Surveying the recent past, I pointed out that socialists had contrived to demonstrate by bloody example what everyone else already knew: Equality and freedom are inherently in conflict. This was really all that socialist efforts had shown, over the dead bodies of millions of people. In talent, intelligence, and physical attributes, individuals were by nature different and unequal; consequently, the attempt to make them equal could only be achieved by restricting -ultimately eliminating- their individual freedom. For the same reason, economic redistribution could be carried out only by force.Socialism is theft.
      Socialism could not even achieve the general welfare that its adherents promised. Socialist efforts to create economic equality invariably led, in practice, to the imposition of poverty on society as a whole, because socialism destroyed the incentives to produce. There were entire socialist libraries devoted to the confiscation and division of existing wealth, but not a single article on how people were motivated to create wealth. Socialist did not know how to make a society work. That was the lesson of the Communist debacle, which the Left has refuses to learn.
      In the final analysis, social injustice was rooted in humanity’s flaws. There had been social institutions, like slavery and segregation, that were wicked and unjust, and needed to be abolished. But in America’s democracy, social injustices -and other evils which leftists decried- were caused primarily by humanity itself. The problem of controlling humanity’s dark side was what necessitated institutions of constraint -the economic market and the democratic state. There was no exit from the dilemmas of history.
      It was this perspective -conservative in its essence- that had inspired the creators of the American republic. In the Federalist Papers, Madison had defended the American idea of liberty by means of legal checks and balances as a design to thwart the leveling agendas of the Left -“a rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project.” The conservatism I had arrived at could be expressed in a single patriotic idea: The revolutionary failures of the Twentieth Century had demonstrated the wisdom of the American founding, and validated its tenets: private property, individual rights, and a limited state.
      Becoming a conservative turned out, ultimately, to be a way of coming home.”

  19. Call these judges before Congress and let them defend their decisions. Grill them unmercifully. If their defence is weak or non-existent, then Congress should first remove their ability to rule on such things, and then impeach them. Toss them out on their ears without any pension.

  20. At this point the problem is twofold:
    1. Congress not immediately removing immigration from federal jurisdiction, which it can do in a majority vote taken immediately.
    2. Trump choosing not to just ignore these two judges who are wildly out of their authority and in violation of the oath of office, subjecting them to immediate dismissal, as the oath is a requirement to gain – and retain – their seat.

    In the longer term – next week – Congress should begin impeachment proceedings. Either America is under the Rule of Law for each and all of us – or it is not.