THE COLUMN: 'The First Thing We Do'

Not everything is subject to litigation.

You know the rest of the quote, which derives from the fourth act of Shakespeare's Henry VI, Part 2. Discussing ways in which to improve England, Dick the Butcher advises his fellow rebels that the quickest path to their objective is "first, let's kill all the lawyers." The famous recommendation has been quoted to much effect and interpreted in many ways, but read in context, and as justified by Jack Cade's response to Dick's suggestion, its liberating purpose cannot be in doubt:

Is not this a lamentable thing, that of the skin of an innocent lamb should be made parchment? that parchment, being scribbled o'er, should undo a man? Some say the bee stings: but I say, 'tis the bee's wax; for I did but seal once to a thing, and I was never mine own man since.

In other words, via the alchemy of the Law, a lamb's hide is turned into parchment, upon which is inscribed a code of conduct -- transitory and far from immutable -- with which the elites impose their will on their subjects, sealing the legislation with beeswax to signify its authority. And thus, by Cade's reasoning, turning ordinary things found in nature into weapons to wield against recalcitrants.

Cade's rebellion eventually founders and Cade is killed, but he does have a point: that the Law, which seeks to prevent tyranny, can itself become tyrannical, and that lawyers are by definition adherents of the Law and not at all interested in the larger issues of justice -- and thus can easily justify tyranny as long as it is the Law.

Which brings us, of course, to Donald Trump. All paths lead to Trump these days, from the news columns to the sports pages and the gardening tips, one of the current manifestations of the media-fueled "resistance" to the man and his presidency. But the real resistance has come not from the scribes or even the Democrat politicians and journalistic lickspittles still reeling from the revelations of the disaster of the Rutabaga Regency of Joe Biden. Who in addition to his many other manifest physical and mental problems, has just recently announced that he is suffering from late-stage prostate cancer -- a disease he and his advisors must have known about for years. His presidency will thus fittingly begin and end in fraud.

Instead, the resistance has come from the federal judiciary, some 844 active members of the Article III branch of the American government. Except for the chief justice of the Supreme Court, all such judgeships have been created by and remain subject to the jurisdiction of Congress, while the judges themselves are appointed by the Executive. They're not referred to "inferior" courts (relative to the Supreme Court) for nothing, and the notion that the judiciary is "independent" is a rank fiction.

And it is these federal judges, acting at the district level, who have decided that their less-than-august offices give them the right to countermand decisions that are exclusively the province of Articles I and II, Congress and the President. Wielding the counterfeit "nationwide injunctions" that are literally beyond the scope of their judgeships, they have sought to hobble the Trump administration from the jump, declaring themselves to be the president's manifest superiors in the conduct of foreign and domestic policy, specifically those aspects of both on which he ran and on which he was definitively elected.

The media, naturally, nods its unthinking head. It never once occurs to them that not everything is litigable, nor should it be. "A nation of laws, not men" is something devoutly not to be wished. Indeed, a nation of laws is a faceless tyranny serviced by a priest class of lawyers who never once ask themselves whether what they're doing is right, only whether it's legal. "Liars for hire" isn't the half of it; ask any lawyer and he'll tell you (they all do) that the real crime isn't what's illegal, it's what is legal.

Since the days of the activist Earl Warren court, Americans have been browbeaten into accepting that everything is subject to the Law -- that the Law is the supreme, dispassionate arbiter, the final bar of Justice. "No man is above the law," they parrot. But the Law is not a panopticon, master of all it surveys, which is everything. There are places it cannot and should not go, especially when it involves high matters of national security and foreign policy -- "that's not who we are" is never the right thing to think or say, for statecraft is amoral -- or the most basic and private of human interactions.

For this of course we can thank the unconstitutional power grab of Marbury v. Madison (1803), which created out of whole cloth the judiciary's "right" to meddle in absolutely everything the president or Congress does. The current crop of Resistance judges has taken that parlous doctrine to its logical conclusion. But the Law is only as valid as the men who write it and enforce it and defend it. The laws of the Weimar Republic were instantly invalidated by the National Socialists' Nuremberg Laws, and all the lawyers in the Reich couldn't save a single Jew, gypsy, homosexual, Catholic prelate, or Communist once the new Law came down on them.

On his deathbed, Alexander the Great was supposedly asked to whom he would leave his empire. "To the strongest" was his answer. As it happened, no one took charge, and the empire broke up into large chunks, some of which (like Ptolemaic Egypt) lasted for centuries. Then along came Caesar and that was that: meet the new Law, different from the old Law.

The Founders didn't invent a "nation of laws, not men." They created a contentious, profoundly human Republic of legislatures, representatives, senators, governors, judges, and presidents who were expected to thrash out their differences in the arena of ideas and power, not by consulting a law library but through sheer will power and force of argument. Guns, too, when it came to that. It can and does get ugly, but that's the way it's supposed to be.

Thus far, the Trump team has played it smart, avoiding provocation, fighting lawfare with lawfare and not overtly refusing a court order while at the same time punting it for all the right reasons of state. The president has every bit as much right to "interpret" the Constitution as John Roberts does, or the lowliest federal judge in Honolulu, and every bit as much right to ignore them, as both Jefferson and Jackson and even Biden did. But when the time comes, as it will, Trump will simply have to quote Andrew Jackson, who is supposed to have said to Chief Justice Marshall (the author of Marbury): "John Marshall has made his decision. Now let him enforce it."

For the long-term health of the country, when the time comes Donald Trump should do the same. In so doing, he is serving the American people, fulfilling his campaign promises and, perhaps most important, protecting the office of the President for all who come after him. That's "who we are."