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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