The interplay among the branches is incredibly complex, and our Constitution contemplates numerous checks and balances.
In the executive branch, we take an oath. We pledge to support and defend the Constitution of the United States against all enemies, foreign and domestic. We promise to bear true faith and allegiance to the same. We attest that we take this obligation freely, without any mental reservation or purpose of evasion. And we commit to well and faithfully execute the duties of the office, so help me God.
Faithfully enforcing the law is not about following a simple set of instructions. As the great champion of the law Robert H. Jackson put it, “law enforcement is not automatic.” Enforcing the law requires discretion and judgment.
When carrying out our enforcement duties, the executive branch is required to enforce the law as written by the legislature, and as interpreted by the judiciary.
At the Department of Justice, our duty is in our name. Attorney General John Ashcroft famously said that we are the only cabinet department with a name that articulates a moral value.
Our Bill of Rights, containing the first ten amendments, is often regarded as the pride of American government. But the Constitution originally had no Bill of Rights. The issue was considered during the Constitutional Convention in Philadelphia in 1787, but the Constitution was ratified without it.
The Framers were more concerned about our government’s structure than a written guarantee of rights, because a written guarantee is only as powerful as the system in place to protect it. Our constitutional structure, and the separation of powers embodied in that structure, represents our government’s defining feature.
Justice Scalia explained that “it is those other humdrum provisions—the structural, mechanistic portions of the Constitution that pit, in James Madison’s words, ‘ambition against ambition,’ and make it impossible for any element of government to obtain unchecked power— that convert the Bill of Rights from a paper assurance to a living guarantee.”
The Founders dispersed power both horizontally and vertically. The three branches of the federal government check one another. The states and the federal government check one another. And the people check both the federal and the state governments.
Our system of government is not self-executing. It relies on wisdom and self-restraint. In a democratic republic, liberty is protected by cultural norms as well as by constitutional text.
Lawyers and judges bear great responsibility for implementing and explaining those principles. The further we get from the founding generation, the less we appreciate how much everything depends on people rather than paper.