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?
The judges that issued restraining orders against President Trump’s travel orders are basing their rulings not on the law, but on the man. They would approve of the same executive order were it done by Barack Obama. They have sought to restrain not the order for it does not violate any law. It is the man, Donald Trump, they seek to restrain with their rulings. They do this on the narrow basis of their personal animus toward him. That sort of thought and action leads to the rule of men, not the rule of law. It threatens tyranny from the one branch of government the founders mistakenly thought would be the least dangerous to liberty.
Montesquieu was an influential force that guided the founders at the Constitutional convention in Philadelphia. It was he who first proposed the idea of separation of powers. The founders liked that idea and adopted it into our Constitution. They knew but perhaps did not fully appreciate the presicence of Montesquieu when he warned that, Universal experience has shown that every man who holds power tends to abuse it. He proceeds until he finds the limits.
Judges have enormous power. They, like any other, can and do abuse it. To claim a law has been violated solely on the basis of their personal animus toward the man who exercised lawful powers granted him by the U.S. Constitution and long-established legal authority is a vicious abuse of judicial power.
It is the judges who need to be restrained in this instance, not President Trump. The judges who made these rulings ought to be shown the limits of their powers. Once upon a time Judicial restraint was self imposed and came from the judges themselves. It now appears we can no longer rely on the personal integrity of the judges and that an outside force must be applied to restore the proper separation of powers that the U.S. Constitution demands and guarantees. The Congress and the President can do this. Together, these branches have the power to determine by statute the sort of cases Article III federal courts can hear and decide. If the judges will not limit their jurisdiction to deciding cases and controversies on the basis of the rule of law, the legislative and executive branches should step in to fix the mess they’ve made.