The Rechtsstaat and the Fate of American Liberty: History catches up to America. The hypocrisy of some of the critics of Donald Trump. This is not a defense of Trump.

The great philosopher of morality Immanuel Kant believed one of the critical elements of freedom under law was the concept of the righteous state, the Rechtsstaat. This is the concept of government under law. Just as we as individuals are subject to law so too, Kant, and other philosophers of liberty, believed that governments should equally be subject to the rule of law.

Just as the individual citizen is penalized for transgressions, governments should face penalties. Most people can agree to the concept of the latter, especially when a government or a person they hate is acting illegally. Kant’s categorical imperative requires that one should “act only on that maxim whereby thou canst at the same time will that it should be universal law.” Wrote philosopher G.H. von Berg, a contemporary of Kant, “Are the princes to be the fathers of the people, however great that they will also become its despots?”

Many of our “princes” are on the way to becoming despots, but we are too caught up in the partisanship of the moment—having our favorite pols win the latest election—to notice. Indeed, now we come to the latest travails of President Trump. He recently issued an executive order banning—or temporarily suspending depending on who you speak to—immigration from seven countries that the administration believes has a large number of terrorists. Critics, many with short memories, contend that President Trump is acting illegally. His executive order is outrageous and should be thrown out by the courts because it is not in keeping with our constitutional traditions.

Is President Trump Really So Different?

How quickly these Trump critics forget. In fact, what has been going on recently is consistent with decades, even generations, of constitutional development of an imperial presidency. And this has been approved by many Americans, directly or indirectly. With myriad executive orders and executive agreements, imperial presidents both left and right have been acting in legally questionable ways. This has been going on not for a few months since Trump became president. It has not been happening for years or decades, but for generations. For example, some of the critics of Trump who complain he is trampling on the constitution, many of whom I would guess were supporters of President Obama, seem to have forgotten something vital in this debate. During his administration, President Obama became frustrated that he couldn’t get immigration reform bills passed through a Congress that, over the eight years of his tenure, became increasingly hostile.

What did President Obama do?

He signed an executive order putting his controversial ideas into law. He bypassed Congress as though it wasn’t a factor in the constitutional process. Millions of Americans, fearful that dangerous people were getting into the country in this age of terrorism, were angry with his executive order. And many of these people were, in part, one of the reasons Trump was able to shock the nation last year, defeating heavy favorite Hillary Clinton, who thoroughly outspent the erratic Trump and had many advantages of quasi-incumbency, yet still lost the election.

The American King

Presidents acting in a unilateral, imperial manner that would have made King George III blush—-ignoring the separation of powers in everything from war to the impoundment of money appropriated by Congress to even taking the country to war without anyone’s approval—is now old news if anyone carefully reads the news. It has been going on for generations. And some who now protest Trump’s executive orders are either historical illiterates or hypocrites who put their party above the principles of liberty and limited government.

Do I exaggerate?

I don’t think so. This is a long sorry history that many Americans, angry about Trump or some other president, don’t even consider.

Who Needs Congress?

Before the first Gulf War, a war in which Americans died so the playboys of Kuwait could get back their little kingdom, there was controversy over just why Americans had to risk another war over something that was not in the vital interests of the United States. This was a so-called province of Iraq that Saddam Hussein wanted. Before the vote on the war, President George H.W. Bush famously said that, even if the vote in Congress went against him, he was still taking the country to war. Then what was the point of having a vote in Congress. And consider how many presidents have stretched to the limit and then some their executive powers—and this included presidents Republican, Democrat, Whig (Polk in the Mexican-American War of 1846). They have maneuvered the nation into the war through the backdoor—FDR in the period between 1939-41—or slammed through the front door. In the latter case, Truman, in 1950 didn’t even ask Congress for a war declaration to take the United States into the Korean War.

For instance in the first two years of World War II, 1939-41, when public opinion overwhelmingly was in favor of the U.S. staying out of war—although incongruently, opinion also favored helping Britain survive—-FDR faced a difficult call. The British were begging the Americans for battleships. FDR was ready to give the ships to them in exchange for some naval bases in the Caribbean. Many believed that such a treaty would face tough going in the U.S. Senate. It might be defeated. So, what did FDR do?

He did what many presidents have been doing for generations. He said it wasn’t a treaty. It was an “executive agreement,” which is not subject to the Senate advise and consent rule. FDR, the same as with many succeeding presidents from Truman to Trump, made a mockery of the constitution by using executive orders and executive agreements. This avoids the messy Congressional debates that are supposed to happen in a free society before serious policies are adopted or not. That is a nation of laws, one in which no one knows who will win but the principle of competition—the marketplace of ideas—is sustained.

Only when the critics of Trump also turn on their own party and say we must put a stop to the imperial presidency will I be able to take any of their criticism and protests seriously. The problem today is these protests stop when one of their own wins office (For instance, how many Trump supporters who protested Obama’s executive orders now protest Trump’s own constitutional sins? Very few). Their loyalty is to power, not to the principles of a Kant. Only with the rediscovery of the ideas of limited government, of government under law, will they then stop being the hypocrites that many of them are.

About The Author

Gregory Bresiger

Gregory Bresiger is an independent business journalist from Queens, New York. His Personal Finance articles have appeared in publications such as The New York Post & Financial Advisor Magazine. He is the author of the eBooks “Personal Finance For People Who Hate Personal Finance” and “MoneySense”.