Is America Even a Nation of Laws?

When Grover Cleveland was elected president for the second time, he said in his inaugural address that he would adopt an “unconstrained” view of the duties laid out for the executive in the Constitution. He meant that he would not constrain or force the words of the Constitution to mean something that they did not obviously mean, or worse, that they obviously did not mean. He would not accept mercurial glosses on the text, trumped-up to justify new powers of government, ostensibly to promote the commonweal.

Cleveland had already given evidence of his determination to hew to the law—to go thus far, and no farther. In 1887, during his first administration, a long drought had reduced Texas to misery. Congress voted to send seed to the farmers in certain Texas counties, at the rather modest cost of $10,000. Cleveland vetoed the bill, one of his 584 vetoes. Said the president:

I can find no warrant for such an appropriation in the Constitution; and I do not believe that the power and duty of the General Government ought to be extended to the relief of individual suffering which is in no manner properly related to the public service or benefit. A prevalent tendency to disregard the limited mission of this power and duty should, I think, be steadily resisted, to the end that the lesson should be constantly enforced that, though the people support the Government, the Government should not support the people.

The words seem to come from a different world. Cleveland was not a hard-hearted man. He appealed to the generosity of the American people, and they responded with vigor, sending aid to their suffering countrymen in a measure far greater than what Congress would have sent.

My point is not to argue about the welfare state and its moral hazards, its extravagance, its various degrees of effectiveness, and its warrant in constitutional law. It is to notice that Cleveland’s dispassionate, umpire-like approach to the responsibilities and the limits of his office is simply incomprehensible now. 

The first question that Cleveland asked himself when Congress appropriated the money was not whether he should sign the bill. It was whether he could sign it: whether the Constitution gave him the authority. Again, I am not arguing that his veto was correct. I note only that he referred straightaway to the law that was to govern his actions. Cleveland understood that to violate the law in a good cause is to sap the earth beneath your city.

I notice that in most of our current political controversies, no one asks the obvious question, “What is the law?” It is as if we no longer really believe in representative government, or in a nation of laws rather than of men (and women) imposing their will. Perhaps the Ship of Law has long sailed. 

We condemn or praise President Trump for his “immigration policy.” Why the president should have an immigration policy is not clear to me, when there are—I assume that there must be—laws, passed by the Congress, which the executive is bound to enforce. We have long engaged in military action across the world without any congressional declaration of war. The president has recently warned school districts against incorporating the awful “1619 Project” in their curricula, lest they lose federal money. Why a national government of 330 million presumably free people should have anything at all to do with the raising and teaching of children, I do not see.

I do see that government in our time, as Samuel Francis observed long ago, functions as a protection racket. It squeezes money out of you, takes a hefty share to engross itself, and then gives you some money back—with a promise, seldom kept, to promote your welfare, and a threat to kill you and stuff you with cotton if you dare to cross it. We can foresee a Biden administration that will kill you and stuff you with cotton—after making it practically impossible for you not to take a dime of “support”—if your school does not go whole hog for the gay agenda.

In the last two months, we have witnessed outbursts of protest across the country, protests that have cost at least 30 lives, that have destroyed the businesses of innocent people, that have shut down major thoroughfares, and that have defied local and state law. This has happened not in the wake of a Great Depression or a world war. There is no emergency to which to appeal. 

Nor can we say that the protests have been, in the legal definition of the word, peaceful. If you keep me from my place of work, you are disturbing the peace. If you cordon off a city block and defy anybody to make you leave, you are disturbing the peace. If you take down a statue or vandalize it, you are disturbing the peace.

Do we have laws, or not? Any governor or mayor who proves unwilling to enforce ordinary and obvious laws intended to keep the peace should be recalled or impeached. It does not matter whether they sympathize with the protestors. Their sympathy is neither here nor there. The aims of the protestors are neither here nor there. They have a job to do, and they should do it.

But perhaps we have something beyond cowardice and ineptitude. Perhaps it is collusion: encouraging those who break the law, so that one might obtain by their means what one otherwise could not obtain through regular political processes. The protestors then function as a kind of occupying army, welcomed in by government collaborators, who try to portray themselves as moderating influences. That cannot work for long. When one indulges people who break the law in broad daylight, he will be the first person they despise.

How did we come to this pass? I am not enough of a historian to answer that question. I suppose that the sheer gigantism of the state makes it impossible for people to know what the relevant laws are, for most spheres of human action; and it is a short step from not knowing the law, to seeing that nobody else knows it, to shrugging and not caring what it is. I suppose that our licentiousness in sexual matters has eaten through its container and now breaks forth as licentiousness in financial and political matters too.

There may be something else. 

We are no longer a culture of honor, which is usually also a culture of self-restraint and self-limitation. We no longer say, “That is something that an honorable man does not do.” The honorable man is not a bully, a sneak, a backbiter, or a tale-bearer. He knows that dishonorable actions stink, and you never get the stink off you, regardless of the cause you wanted to promote. He knows that if he cannot swear to work with a duly elected or appointed superior, he should resign. He does not permit his personal feelings, much less his financial or political interests, to prevent him from doing his duty, or to excuse what is base, cowardly, or treacherous. 

The honorable man is almost as suspicious of what he favors as of what he does not, and if anything he is willing to strain himself and his friendships to be fair to those he does not like. He knows that respect must be earned, and once it is lost, one must move mountains to regain it. He pities the weak, but he does not believe that their weakness makes them sure arbiters of what is just or true.

In what jurisdiction could such a person now be elected to office?

About Anthony Esolen

Anthony Esolen is a professor and writer in residence at Magdalen College of the Liberal Arts, in Warner, New Hampshire. Dr. Esolen is a senior editor for Touchstone Magazine and a contributing editor for Chronicles. He is a regular contributor to Crisis Magazine and the author of many books, including The Politically Incorrect Guide to Western Civilization (Regnery Press, 2008); Ten Ways to Destroy the Imagination of Your Child (ISI Books, 2010) and Reflections on the Christian Life (Sophia Institute Press, 2013). His most recent books are Reclaiming Catholic Social Teaching (Sophia Institute Press, 2014); Defending Marriage (Tan Books, 2014); Life Under Compulsion (ISI Books, 2015); Real Music: A Guide to the Timeless Hymns of the Church (Tan Books, 2016); Out of the Ashes (Regnery, 2017); Nostalgia (Regnery, 2018); and Sex and the Unreal City (Ignatius, 2020).

Photo: Duncan1890/Getty Images

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