by Mitch Kokai
Senior Political Analyst, John Locke Foundation
What President Trump is learning is that politics isn’t only about the rules. It’s also about the rules about the rules.
Conservatives who think of themselves as constitutionalists, as followers in the footsteps of Antonin Scalia and Robert Bork, often proceed as though all of the answers to all of our political disputes were self-evident in the language of the Constitution and the statutes. There is something very Protestant in that: It is analogous to the belief that the truth about everything can be found in a complete and usable form in Scripture, if only we look with the right kind of eyes and the right kind of hearts, no interpretation or philosophy necessary. That sort of thing does not hold up very well to even cursory scrutiny. Both are necessary, but the Church is not the Book.
In his very amusing and illuminating essay “The Myth of the Rule of Law,” Professor John Hasnas of Georgetown considers the issue of interpretation and the First Amendment, which says that Congress shall pass no law abridging freedom of speech or freedom of the press. He asks: Can the president issue an executive order prohibiting criticism of the government? We recoil from the notion, but a prohibition on it is not quite there in the First Amendment, the language of which restricts what Congress may do, not what the president may do. What about prohibiting the publication of military secrets during a duly declared war? There is not in the First Amendment an exception for military issues, but we have made room for one. You can make a good case against presidential censorship and for military-secrecy laws, but that case is not to be found in the plain language of the First Amendment. It is to be found in interpretation, reasoning, argument — politics.
Sometimes the answer is to be found in the plain language of the law. At the margins, things are different.