Separation of Power: To make a more perfect union, don’t look to the Founding Fathers

William Hogeland in Lapham's Quarterly:

ScreenHunter_3014 Mar. 22 19.21The rule of law is making news. Representative headlines include “Trump’s All-Out Attack on the Rule of Law” (The Nation), an open door to anarchy: “President Trump Is a Threat to America’s Rule of Law and its National Security” (U.S. News & World Report), and “Trump’s Latest Attack on the Rule of Law” (Washington Post). The revived phrase usefully distills John Adams’ favorite definition of a republic, “a government of laws and not of men.” A government not, that is, arbitrary but regular, with benefits not personal but public, proceeding by written-down precept, not ad hoc impulse, thus sheltering rights from changes of party and whims of personality. Keeping the rule of law in mind can help cut through the Trump administration’s dizzying incoherence to arrive at an underlying fault: total disdain, sometimes barely covert, sometimes brazen, for the restraints legally imposed on the office. Using power to satisfy personal desires, enrich friends and family, put on shows for supporters, and punish enemies and critics sets this administration at odds with values that many Americans, of conflicting political persuasions, have long believed run deeper than political disagreement.

Not that our government has always or even often enough operated according to the rule of law. The current president has taken violation to a degree of heedlessness so grotesque that we can’t be sure he knows he’s violating anything. That degree, it turns out, puts us through the looking glass. We may never have known before how deeply rooted a sense of respect for the concept of the rule of law has been to everything we hope that our government can be. When calling a republic a government of laws and not of men, Adams was paraphrasing seventeenth-century writer James Harrington, whose thinking about tyranny and liberty in the context of England’s Puritan revolution had a powerful influence on the country’s founders. Harrington called the precept “ancient,” by which he meant something like “fundamental to legitimate order.” The American founders, adopting that view, did something Harrington couldn’t. They put the rule of law into practice, forming a new nation explicitly on its basis.

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