From time to time, I encounter a distinguished argument about natural law, usually involving an eighteenth century philosopher whose meaning everyone else seems to understand more confidently than I do. I tend to avoid these debates because they eventually become circular.
But lately I find myself longing for a less distinguished branch of jurisprudence: common sense.
Laws cannot anticipate every circumstance. Courts require time to sort out the circumstances they do anticipate. And some things are so plainly contrary to the spirit of constitutional government that it seems almost absurd to require litigation to establish the point.
For example, a president should not be able to unilaterally redesign the White House. We have a two term limit for a reason. The property belongs to the country, not merely to the person temporarily occupying it.
Nor should a president erect a national landmark in his own honor while still in office. History needs some distance. So do the rest of us.
If Jimmy Carter felt obliged to place his peanut business beyond his control while serving as president, surely a president should not be permitted to profit from market movements created by his own official acts. The government should not become an instrument for creating information from which the person running it can personally benefit.
And no president should be able to pardon himself. The fact that anyone imagines the Supreme Court might one day have to decide such a case is almost comic. Surely somewhere beneath the layers of constitutional interpretation resides the elementary proposition that a person should not be the final judge of his own criminal liability.
Likewise, no person should appoint members to a committee and then have those same members pass judgment on his own presidency. No president should install his personal attorney as head of the Department of Justice and expect the country to regard the arrangement as institutionally ordinary.
And foreign policy should not turn on whether another head of government has been “nice” to the president.
There are more examples, of course.
That is precisely the problem.
No constitution can contain a clause covering every abuse of power because imagination is always capable of outrunning legislation. Some situations cannot be anticipated because they seem unbelievable until someone actually tries them.
One can argue that elections are supposed to solve this problem. Voters choose leaders who operate with good intentions inside the law, respect traditions they are not legally compelled to respect, and understand that possessing a power is not necessarily the same thing as being entitled to use it.
But what happens if they don’t?
What happens when the unimaginable becomes merely Tuesday?
Common sense is not law, and we should be wary of pretending otherwise. It is subjective, imperfect, and occasionally wrong. But constitutional government has always depended upon something beyond enforceable rules: restraint, shame, precedent, judgment, and the understanding that temporary possession of public power does not convert it into personal property.
Those things are difficult to legislate.
They are also remarkably easy to lose.
Common sense, then, is not a substitute for law. It is a warning system, the quiet voice suggesting that perhaps we should not need a lawsuit, an appellate decision, and five Supreme Court justices to determine that something is fundamentally wrong.
No constitution can anticipate every exercise of human ingenuity.
And when restraint disappears, we discover the Constitution’s greatest vulnerability:
not what it forbids, but what it never imagined anyone would try.