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Ideal governance in ‘the rule of law, and not of men’

Jun 22,2017 - Last updated at Jun 24,2017

Right now, the world is getting a crash course in the unique complexities of the American political system, but the problem is that it is incredibly confusing and overwhelming for most, not just for non-Americans, but Americans also.

A silver lining is that, even as confusing as the current events happening in Washington are, there are clear lessons about the US for foreigners in the drama, even in a place like Jordan.

For many Jordanians, the US must seem all-powerful, a continent-wide behemoth that can impose its will at will.

In my three years as a guest in Jordan, a belief that the vast majority of Jordanians with whom I interact have conveyed is that America controls everything, and that this is done, they believe, either through the power of the president or a CIA that controls him.

Trump has been doing a lot to shatter these myths, whether people realise it or not, and this can only be a good thing that gives people all over the world a more realistic view of a very complex political system.

In most of the rest of the world, there are European-style democracies that generally combine the executive and legislative branches so that sweeping legislation can be passed with relative ease, and there are relatively fewer checks on the political party in power and its leaders; de-facto authoritarian governments run at the top either by oligarchy or a single powerful leader, with the rest of the machinery of government run by their loyalist (effectively, nations of men, not laws); or a combination of these two systems in which elections are held but there are very few checks on abuses of power.

In contrast with the more authoritarian systems, America is “a government of laws, and not of men”, to quote John Adams, America’s second president.

Even more so than in parliamentary democracies, rulers in America are subject to far more constraint in domestic affairs.

From an abundance of available reporting, Donald Trump clearly felt that he could run America’s executive branch (the presidency and all the federal agencies, from the FBI and CIA to the NSA and the Department of Education) like he ran his businesses: with few checks on his power and on the basis of loyalty to Trump.

Instead, we are getting a master class in checks and balances.

One of the most remarkable things about Trump’s presidency?

What a difficult time he is having, even with his own Republican Party effectively in control of all three branches of government.

One often hears that the executive, legislative and judicial branches check each other, and this is true.

Less understood is the reality that the branches check themselves.

James Madison, America’s fourth president who essentially wrote America’s constitution, noted even before the constitution was adopted that it would create a system in which each subdivision within the government and its departments would check its counterparts and power itself: “Ambition must be made to counteract ambition.”

And, in particular, the executive branch departmental heads and senior officials must be approved by Congress and are subject to rulings of the judicial branch.

In other words, though chosen by the president, their power is subject to judicial review by judges the president cannot remove, they are invested with their power by the people through their elected representatives, and Congress, under its constitutional authority, has even made it illegal for the president to fire many non-senior officials arbitrarily without good cause.

In fact, of the millions of government employees, the president can only appoint a few thousand; most are career professional whose service both precedes and will outlast Trump’s presidency.

Thus, while the president leads and runs the executive branch, its officers and other federal office holders, including the entire military, swear oaths not to the president, but the constitution.

This explains why though Trump is president, amid his alleged abuses of power, he has found that FBI directors, acting and deputy attorney generals, and intelligence chiefs under him are all resisting his problematic directives, and when he and his top advisors make statements that appear to be untrue, brave men and women in various executive branch departments leaked information at great personal legal risk to alert the public to the truth and hold office holders accountable.

The president and the CIA are even in conflict with each other, and here we see neither simply dominating the other, but each checking the other.

Here is seen the rule of law, and not of men; here, intricate laws and both balances and divisions of power are being displayed for all the world to see, that one powerful man at the top is not all powerful, that his actions are subject to the law, that most of the people working under him serve the law (and, through that, the people) first and the president second, and that the law is designed to also protect the people from themselves, as many elected Trump hoping he would be able to quickly do things that were actually illegal and that they did not know could bring great harm to the US.

In the end, the judges, bureaucrats and officers loyal to the constitution and the law are often the last line of defence in American democracy if the media and people fail to properly inform and be informed, respectively, and, ultimately, it will be up to voters to validate either the presidents’ actions or those of this last-line fighters, and thus shape their system accordingly.

Currently, the nation, overall, acts not sweepingly with a single will, but, absent broad consensus, in fits and starts that both represent and demonstrate multiple wills and power centres, its divided people and its diversity of opinion.

A bad president or presidents can, over time, erode and even destroy this last line of defence, but so far, it has been working beautifully to constrain arguably the most powerful man in the world.

This reality was all along Madison's intention and that of the constitution.

It is a lesson that many governments in the Middle East, particularly those wrecked by conflict and war, would do well to learn: loyalty to the law first, not the rulers above the law, is true loyalty to the nation, and ruled and rulers alike must be subject to it.

As a former consultant for USAID’s Jordan Rule of Law Programme, I can state that Jordan's government is taking serious steps to make the country one of laws, and not of men.

Other governments in the Middle East would do well to follow Jordan’s (and Madison’s) example.

The writer is a freelance writer and consultant specialising in policy, politics, conflict, humanitarian and development issues, and history. You can follow him on Twitter: @bfry1981. He contributed this article to The Jordan Times.

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