OPINION:
In a scene in Robert Bolt’s play “A Man for All Seasons,” about the treason trial of St. Thomas More, More argues with the attorney general of Wales about the law.
The attorney general says he would cut down all the laws in England to get to the devil. More reminds him that the laws were written to protect us from those who would cut them down because, as More says, when the devil turns round and seeks you, where would you hide, “the laws all being flat?” Answer: Nowhere.
The recent statement by President Trump in an interview with The New York Times that, on the international stage, only his “own morality” and his “own mind” can restrain him is a direct repudiation of his oath of office, as it effectively undermines the laws. It profoundly rejects the restraints imposed upon him by the U.S. Constitution, which he has publicly sworn to preserve, protect and defend, and by the treaties to which the U.S. is a party as well as by appropriate federal statutes.
The purpose of the Constitution is to establish the federal government and restrain it. In the process of establishment, it has delegated all legislative power to Congress and the executive power to the president. In doing so, it has intentionally kept each out of the other’s work. Only Congress can raise taxes and declare war. Only the president can enforce the laws and wage war as Congress has declared. The judiciary has the final say on the meaning of the Constitution and federal laws.
This is the system of checks and balances, with powers circumscribed and restraints imposed so as to prevent the accumulation of excessive power in any one branch at the expense of either of the other two, thereby, at least theoretically, protecting personal liberty.
The Constitution is the supreme law of the land. It requires that every officeholder and government employee — local, state and federal — swear allegiance to it. That allegiance is not only to the words in the Constitution and its 27 amendments but also to the values manifested by those words.
Moreover, treaties to which the United States is a party by virtue of presidential assent and Senate ratification are also the supreme law of the land. Treaties cannot contradict or purport to nullify anything in the Constitution, but they can, like the Geneva Conventions, regulate and restrain American foreign policy.
All this constitutes basic, sound constitutional jurisprudence, well-woven into the fabric of our history. There are numerous ways to interpret the Constitution, and definitive interpretations can even change over time. It took nearly 60 years for Plessy v. Ferguson, which upheld state-imposed racial discrimination under the “separate but equal” doctrine, to be overturned by Brown v. Board of Education, which declared that separate is inherently unequal.
The same is the case for abortion. It took 50 years for Roe v. Wade, which held that the right to privacy protected the mother’s ability to abort her child, to become Dobbs v. Jackson, which held that abortion is a matter of health and safety, and these are inherently state concerns.
Some values can never change without materially undermining the scheme of government established by the Constitution. Foremost among those unchangeable values is fidelity to the rule of law. When the president takes an oath to preserve, protect and defend the Constitution, he agrees to follow the law, whether he agrees with it or not.
When the president takes the oath, he promises to execute the office “faithfully.” James Madison feared a cross-your-fingers-behind-your-back moment if the word faithfully were not in the oath.
Now, back to Mr. Trump. By claiming that “on the world stage” — language used by the reporter who questioned Mr. Trump, not by Mr. Trump himself — only his mind and morality can restrain him, he has revealed by his own choice of words what his presidential behavior has already manifested. He obviously rejects the obligation to execute his job faithfully. His loyalty is to himself, not to the words or the values underlying the Constitution.
Thus, when his own mind disagrees with a restraint on him — such as, only Congress can impose taxes, and only Congress can declare war — he will opt for fidelity to his own mind over fidelity to the Constitution and his oath to preserve, protect and defend it.
He has imposed sales taxes on the American people, and he has directed the military to kill innocents on the high seas and to conduct an invasion of Venezuela and the abduction of the recognized Venezuelan president and his wife. In the process of these events, he has unilaterally extracted billions of dollars from consumers who pay for his sales taxes that he calls tariffs, and his troops have unilaterally murdered hundreds of innocents — on speedboats and fishing boats in international waters, while asleep in military barracks in Caracas, and inside the Venezuelan presidential compound.
He also has announced that the U.S. will steal oil from the ground under Venezuelan sovereign land, and he even proclaimed himself to be the acting president of Venezuela.
The United States of America is based on the Constitution. It presumes that when a person takes an oath of fidelity to it, the person did so without mental reservation or purpose of evasion. In the course of our history, we have had presidents murder innocent civilians, incarcerate innocents based on race and knowingly lie us into wars. And we have survived as a nation.
Now this.
This is a public rejection of the structural norms of government unseen in our history. If unchecked, America will never be the same, as the nation suffers at the mercy of the presidential “mind.” The laws cannot protect us because this president has cut them down to crush whatever self-denominated devil comes into his crosshairs.
• To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.
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