Understanding the Constitution #19: It Created a Government of Laws, Not Men

The FBI search of former President Donald Trump’s Mar-a-Lago estate to recover documents from his presidency triggered both approval and outrage.  The approval came from those angry that he kept sensitive and highly-classified material despite repeated requests from the National Archives to return it. The outrage came from those who view the FBI as “thugs” and the search as extraordinary and unprecedented.

Reams of newsprint and gigabytes of social media commentary, as the saying goes, have focused on the trees and largely missed the forest.

On September 9, 1974, the day after Gerald Ford replaced Richard Nixon, a Ford aide, Benton Becker, noticed boxes being loaded onto trucks on West Executive Avenue.  Learning they contained Nixon’s papers and tapes and were to be shipped to him, Becker ordered them put back in the White House.  Becker believed they belonged to the government, yet no law said so. By December, Congress passed such a law, giving the government ownership. In 1978, the Presidential Records Act passed and requires all presidents to turn over their official documents to the National Archives upon leaving office.

The issue is thus only partly that some documents at Mar-a-Lago were classified.  The primary issue is that nearly two years after leaving office, former President Trump held official documents in violation of the law. The Constitution created a government of laws not men.  The defenses offered (e.g. “they’re his papers,” “the government should have negotiated with him”) presume he can decide how and if he should follow the law.       

A government of laws not men is a triumph of history not just of America’s founding generation.  In the fourth century BCE Aristotle wrote: “It is more proper that law should govern than any one of the citizens . . . they should be appointed to be only guardians, and the servants of the laws.”  The principle gained force over time, ending the divine right of kings which had put them outside and above the law.  In 1776, Thomas Paine wrote in Common Sense that “in America, the law is king.”  In the 1780 Massachusetts constitution, John Adams wrote that in its government, “the legislative, executive, and judicial power shall be placed in separate departments, to the end that it might be a government of laws, and not of men.”  That state’s constitution powerfully shaped the national one.

The words “a government of laws, not men” appear nowhere in the Constitution, but what’s there implements this principle. The Constitution requires that all office holders take an oath not to a person but to the Constitution. The three branches, as Adams said, were designed with separate strengths to enable them to avoid the concentration of power in a person or group.  Three examples illustrate this: (1) Congress may remove a president from office; (2) the president may veto laws passed by Congress; and (3) the courts can declare actions in violation of the Constitution.   A Constitutional amendment limits a president’s terms and the wording of most other amendments protects people against those in power who would violate their lawful rights.   

On December 23, 1783, General George Washington surrendered his commission to Congress and in 1796 left the presidency, though he could have been re-elected for a third term.  Both acts strengthened the principle that governmental power resides only temporarily in a person.  President Lincoln, at the height of his power, refused to free all the slaves without a Constitutional amendment, honoring the fact that a president cannot make a law.  In Ford’s inaugural remarks, after the nation forced Nixon out of office for violating the law, he said: “Our Constitution works; our great Republic is a government of laws and not of men.”

Immigrants wishing to become citizens must demonstrate they understand the Constitution.  One question they must be able to answer is: “What is the rule of law?”  There are four acceptable responses: (1) no one is above the law, (2) everyone must follow the law, (3) leaders must obey the law, and (4) government must obey the law.

This principle separates democracy from dictatorship.  By no means is every law good or just. Hitler’s regime passed horrific laws.  But his was a government of men.  As historian Richard Samuelson put it: “The empire of laws in concerned with right; the empire of men, with power.”

In a democracy, the corrective for a bad law is a better one. The machinery of the Constitution gives us the means to do that, peacefully.  When people - Democrats, Republicans or others - ignore or defy laws, storm government buildings or loot private ones, attack law enforcement and other public servants or threaten officials, they elevate themselves above the law.  When leaders - who should model correct behavior - denigrate laws or threaten riots when lawful action is taken, they pave the road for the “empire of men.”

The Constitution’s government of laws is not self-implementing.  Only our actions make it work.  John Adams lost the presidency to Thomas Jefferson in 1800.  He stepped down to assure a peaceful transition, strengthening the Constitution as a government of laws not men in our young republic.  As he once put it:

“A constitution is a standard, a pillar, and a bond when it is understood, approved, and beloved.  But without this intelligence and attachment, it might as well be a kite or balloon flying in the air.”

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