We Cannot Trust Parchment Barriers Against the Encroaching Spirit of Power
June 2, 2025
The ongoing efforts of federal judges to contain President Donald Trump’s usurpation of congressional authority reflect an enduring theme; the fundamental conflict between power and law underlies the entire scope of political history. For as long as men and women have sought to shape and limit executive power through regulations and laws, the weakness of the cause has been repeatedly exposed. The conflict was brought into sharp relief on November 13, 1608, in a dramatic confrontation between King James I and Sir Edward Coke, Chief Justice of the King’s Bench and patron saint to America’s founders for championing constitutionalism and the rule of law.
On that day, Lord Coke asserted the supremacy of the law. King James I was offended by Coke’s contention and declared that because all judges were but “his shadows and ministers,” he could take any case he chose, remove it from the jurisdiction of the courts and decide it in his royal person. Lord Coke replied that “the King in his own person cannot adjudge any case,” and added that cases should be determined by courts of justice, “according to the law and custom of England.”
James I, according to Coke, “was greatly offended.” James said, “this means that I shall be under the law, which it is treason to affirm.” Coke’s assertion of the supremacy of law was wholly inconsistent with the King’s pretensions to absolute power and James nearly banished Coke to the Tower of London, where he would have perished and would not have achieved the historical influence that he wielded in the minds of our nation’s founders.
The answer to the soaring claims of unbridled executive authority, delegates to the Constitutional Convention believed, lay in the enumeration of powers, fortified by the separation of powers and checks and balances. James Madison, in Federalist No. 48, recognized the vulnerability of this enterprise to constitutional corruption. Simply to provide in the Constitution that each branch should wield its own powers would be “to trust to parchment barriers against the encroaching spirit of power.” Reliance on officials’ adherence to written words—the text of the Constitution—would be inadequate as a means of restraining governmental agents from “overleaping their boundaries.”
More was required. Checks and balances, constructed on the principle, as Madison pointed out in Federalist 51, that “ambition should counteract ambition,” implied that those in positions of power would jealously guard their constitutional turf and defend it from usurpation by those in other branches. The interest of the man, Madison explained, would fit the interest of the place, creating a symbiotic relationship that, in theory, would be strong enough to maintain the enumeration of powers.
The founders’ working assumption explains the willingness of the judiciary, thus far, to restrain President Trump’s acts of usurpation through issuance of temporary injunctions, for if judges acquiesced in his aim to be the chief interpreter of the laws and the Constitution, they would be complicit in the surrender of the rule of law and handmaiden to tyranny.
But this assumption seems not to apply to a feckless Congress that has acquiesced in the face of Trump’s aggrandizement of its chief constitutional powers—appropriations, lawmaking, and appointments, among others. How to explain this abdication of powers and duties among members of Congress? Madison assumed that “ambition” meant ambition to excel—that is, achievement of success, significance, stature, and legacy through exceptional policymaking and lawmaking—not ambition to make a career which, sadly, seems to be the preoccupation of many members. Careerism renders members vulnerable to partisan political jabs, attacks and means of coercion, including those unleashed by an authoritarian who intimidates and threatens members with primary opponents.
It must also be emphasized that when party leadership is subordinate to the president, as the GOP is now, Congress will be weak. In this case, party allegiance blurs and even obliterates the separation of powers and checks and balances. And then there is the desire of members to ascend to the presidency, which compromises the performance of their duties and responsibilities. In many cases, we should conclude, the difference in behavior between judges and congressmen just might be found in backbone, the courage to carry out one’s oath of office and the willingness to do the right thing which, in our time, is the constitutional thing.
-David Adler