Freedom of thought is the only guarantee against an infection of mankind by mass myths, which, in the hands of treacherous hypocrites and demagogues, can be transformed into bloody dictatorships.
—ANDREI SAKHAROV
THE RULE OF LAW IS A POLITICAL PHRASE THAT GOES back to sixteenth-century England, when citizens were burdened by English kings’ “divine right” to rule. Nobody would think of prosecuting a sitting king. The king could not violate the law because he was the law. He could hire and fire crown prosecutors at his will.
This was essentially a “unitary executive” style of government: one king and one government under the king. The king was chosen by God and was accountable only to God. Everyone else obeyed the king.
We will return to the unitary executive theory of executive power later in this book, explaining how the modern iteration envisions a ruler—even an elected ruler like a president—with the powers of a medieval king.
John Locke, the English philosopher who influenced American revolutionaries, opposed this vision of authoritarian rule:
“The natural liberty of man is to be free from any superior power on earth, and not to be under the will or legislative authority of man, but to have only the law of nature for his rule,” Locke wrote. “The liberty of man, in society, is to be under no other legislative power, but that established, by consent, in the commonwealth, nor under the dominion of any will, or restraint of any law, but what that legislative shall enact, according to the trust put in it.”
When the founders wrote the Declaration of Independence, they started with the principle of the consent of the governed—the only legitimate government would be one with a “social compact” between citizens and government. The founders also sought to guard against the tendency of those in power to abuse their authority. The government they set up had limits. It was divided into branches to limit its power.
The founders wrote the Declaration of Independence to explain why they no longer would tolerate and submit to King George’s tyranny.
The founders believed in the protection of individual rights, and they were willing to go to war to get them.
The first attempt at central governance was way too weak. Under the Articles of Confederation, the federal government couldn’t tax, regulate commerce, make treaties, or protect the rights of states or individuals. After the Revolutionary War, the founders made a second attempt with the Constitution, which divided the government into three branches: executive, legislative, and judicial. Each branch was expected to act as a check on unlimited power of any other branch.
From our beginnings to now, citizens of the United States have lived under a rule of law. What that means is that our laws are (relatively) stable, limited in scope, and apply to every citizen—including those who make them.
The rule of law means the law reigns supreme. “The law is king,” wrote Thomas Paine in his pamphlet “Common Sense.” When John Adams helped write the Massachusetts constitution, he sought to set up “a government of laws and not of men.”
As James Madison wrote in The Federalist Papers, “If the American people shall ever be so debased as to tolerate a law not obligatory on the legislature as well as the people, the people will be prepared to tolerate any thing but liberty.” He wrote, “No one is above the law in respect to enforcement; no one is privileged to ignore the law, just as no one is outside the law in terms of its protection.”
The founders hoped to elect virtuous leaders with wisdom, courage, honesty, humility, responsibility, and a sense of justice. But, just in case, they gave Congress and the federal courts the tools to keep a less-than-virtuous president in check. The House and Senate could impeach a president who committed “high crimes and misdemeanors” in office.
The framers created this impeachment remedy with the expectation that Congress would take action if ever faced with a president who acted like Nero or King George.
Those elected to the legislature were depended upon to have the wisdom, courage, and sense of justice necessary to take action whenever they saw the president overstepping his bounds. They were expected to put their country and its Constitution first, and their partisanship and personal loyalties second.
In US history, only two presidents before Trump have been impeached by the House. Neither was convicted by the Senate. Andrew Johnson was impeached for his refusal to implement post–Civil War Reconstruction. He was acquitted. Bill Clinton was impeached for lying under oath about having sex with an intern. He was acquitted. Richard Nixon resigned before being impeached, and for good reason.
But no president in our history more closely matches the founder’s fears than Donald Trump. It has become obvious that the country is being run by a narcissistic oligarch with enormous financial conflicts of interest and extraordinarily bad judgment, who obstructs justice and repeatedly lies, and who likely owes his presidency to the influence of a foreign power.
It would be hard even for a talented novelist to come up with a president such as Trump. He has attacked political institutions—Congress, the Justice Department, the FBI, the cabinet, and the federal courts—without concrete proposals to improve them. He has loudly proclaimed to be “draining the swamp,” but the financial conflicts that he brought to Washington have done the exact opposite. By “draining the swamp,” he’s actually attempted to destroy the rule of law. By “draining the swamp,” he disrupted investigations of his conflicts of interest, payoffs to women to keep quiet about affairs, Russian involvement in the election, and anything else that might embarrass him.
The authors of this book are confident this country can come out of this national nightmare, but it’s worth exploring the history that brought us to this point and asking how America could return to its best self.
Meanwhile, Donald Trump fiddles while the rule of law burns.