Obama's Rule of Lawlessness

The men who wrote the U.S. Constitution were fearful that concentrated power invested in any one institution or individual would lead to tyranny. Their fear was well justified. Having emerged victorious in a war for independence, they were determined to ensure the new nation could not slip easily into a tyranny of its own. Relying heavily on the writing of John Locke, Thomas Hobbes, and Montesquieu, they developed a plan for a national government that was specifically limited in its power and reach.

It is true, as countless historians have described almost since the beginning of the republic, that those limits have been relaxed, but they nonetheless remain. The various tensions between the different branches of the federal government and between the federal government and the states, while sometimes disruptive to the smooth order of things, nevertheless are the very things holding it up – much like a great suspension bridge over a major river. The very thing that restrains it is what allows it to operate continuously.

All this was done to protect the liberties of the people, liberties that came not from government but from the creator of the universe Himself. In this, our republic, the people are sovereign, meaning the ultimate power and authority rests with them. That power is most frequently exercised in the voting booth but also through speech, protest, pamphleteering – the equivalent of blogging in the modern era – and the right to vigorously petition legislators and the executive branch and the courts for redress of grievances.

It's not a perfect system but it is a sound one, and it has endured for nearly 250 years despite the way time and progress have allowed some of those separations to be eroded. The direct election of U.S. senators, something the people sought and approved, is one example. It made its members accountable to the people of the states rather than the states themselves, reducing their influence over the activities of the federal government by diminishing their status as distinct, separate and, in some ways, equally powerful political entities to whom legislators were accountable.

Over time we have adjusted and not always for the better. Beginning with the Progressive era and Woodrow Wilson's election to the presidency, the process of gaining consent for political propositions has evolved from consensus to coercion. Operating from the position that the Constitution is a living, breathing compact, it is routinely reinterpreted by each generation according to that generation's standards and desired outcomes.

Nonetheless, we remain a nation not of men or caprices but of laws, something that can be traced back to an event that occurred long ago on the banks of an English river and whose anniversary we celebrate this month.

On June 15, 1215, rebellious English nobles forced King John, who is better known for his part in the tale of Robin Hood than for his contribution to the evolution of democracy, to affix his seal to a document drafted by the then-Catholic Archbishop of Canterbury that changed the relationship between the people and the government. That document, the Magna Carta (Latin for "Great Charter") represents the first recorded instance in Western political history in which a sovereign accepted his powers were limited. And, even though John shortly thereafter had it invalidated by Pope Innocent III, the genie was out of the bottle. Not long after, in response to the outbreak of civil war, the charter was revised and reintroduced during a period of regency that followed John's death and was eventually accepted as the law of the land.

The Magna Carta codified the idea that the people and the government are both subordinate to the law. This was the great leap forward for mankind at a time when few had a pen and no one had a phone.

As president, Barack Obama has seemed at times to chafe at this idea. His frustration is understandable; greater presidents than he have also complained about the limitations placed upon their freedom to act by the constraints of the job. But few have been so public about it or used the "bully pulpit" as frequently as he to both complain about it and to rally his political base in support of everything and anything he does or wishes to do.

Other presidents have met this challenge by rallying the country to support their efforts working within the constitutional framework. Some of Ronald Reagan's greatest victories came about, as he put it, as a result of his going over the heads of Congress to talk directly to the American people. Franklin Roosevelt, who changed the character and scope of the federal government more than perhaps any president after George Washington, experienced his greatest defeat when, out of frustration that his anti-Depression relief measures were continually found to be unconstitutional, came up with a scheme to "pack" the nation's highest court with supporters of what he was trying to do.

Even so, both Reagan and FDR attempted to achieve their objectives within the system; Obama prefers to go outside it, ruling by executive orders, waivers and grants of executive privilege in order to gain what he desires with no thought to the need for the approval of Congress or for a rule of law going back 800 years. Moreover when he does seek approval, it is done more often as a delaying tactic designed to fan the flames of the public debate rather than out of respect for the law.

Now that the campaign to choose his successor is underway, it will be useful to know the thinking of the next occupant of 1600 Pennsylvania Avenue, whoever he or she may be, on this subject. While not as sexy (and therefore worthy of media attention) an issue as abortion, taxes, the Second Amendment or immigration, this is the issue that undergirds all others. The potential presidents now traipsing through the Iowa cornfields and the New Hampshire Christmas tree farms owe us the opportunity to hear their views on the subject.