The people who founded our nation and those who wrote or ratified the original Constitution (and very promptly thereafter amended it to include the Bill of Rights) repeatedly sought to emphasize a particular governing principle. As Chief Justice Marshall (speaking for SCOTUS) plainly put it in Marbury v. Madison in 1803, "The government of the United States has been emphatically termed a government of laws, and not of men."
SCOTUS in Youngstown Sheet & Tube Co. v. Sawyer in 1952 emphasized that Article II emphasized that the president "shall take Care that the Laws be faithfully executed," and that "authority" is emphatically limited by the "words of the Fifth Amendment that 'No person shall be . . . deprived of life, liberty or property, without due process of law . . . .' One gives a governmental authority that reaches so far as there is law, the other gives a private right that authority shall go no farther. These signify about all there is of the principle that ours is a government of laws, not of men, and that we submit ourselves to rulers only if under rules."
As Justice Frankfurter put it in his concurring opinion in Cooper v. Aaron in 1958 (quoting the concurring opinion of Justices Frankfurter, Black and Douglas in United States v. United Mine Workers in 1947):
"The historic phrase 'a government of laws and not of men' epitomizes the distinguishing character of our political society. When John Adams put that phrase into the Massachusetts Declaration of Rights he was not indulging in a rhetorical flourish. He was expressing the aim of those who, with him, framed the Declaration of Independence and founded the Republic. 'A government of laws and not of men' was the rejection in positive terms of rule by fiat, whether by the fiat of governmental or private power. Every act of government may be challenged by an appeal to law, as finally pronounced by this Court. Even this Court has the last say only for a time. Being composed of fallible men, it may err. But revision of its errors must be by orderly process of law. The Court may be asked to reconsider its decisions, and this has been done successfully again and again throughout our history. Or, what this Court has deemed its duty to decide may be changed by legislation, as it often has been, and, on occasion, by constitutional amendment.
"But from their own experience and their deep reading in history, the Founders knew that Law alone saves a society from being rent by internecine strife or ruled by mere brute power however disguised. 'Civilization involves subjection of force to reason, and the agency of this subjection is law.' (Pound, The Future of Law (1937) 47 Yale L. J. 1, 13.) The conception of a government by laws dominated the thoughts of those who founded this Nation and designed its Constitution, although they knew as well as the belittlers of the conception that laws have to be made, interpreted and enforced by men. To that end, they set apart a body of men, who were to be the depositories of law, who by their disciplined training and character and by withdrawal from the usual temptations of private interest may reasonably be expected to be 'as free, impartial, and independent as the lot of humanity will admit.' So strongly were the framers of the Constitution bent on securing a reign of law that they endowed the judicial office with extraordinary safeguards and prestige. No one, no matter how exalted his public office or how righteous his private motive, can be judge in his own case. That is what courts are [meant to be] for."
SCOTUS in Yick Wo v. Hopkins in 1886 emphasized the vital importance of remaining true to the principle that our Constitution established "a government of laws and not of men" to protect us all from "the play and action of purely personal and arbitrary power." SCOTUS emphasized that "the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails." It is "the essence of slavery itself."
See Yick Wo v. Hopkins, 118 U.S. 356, 369-370 (1886):
When we consider the nature and the theory of our institutions of government, the principles upon which they are supposed to rest, and review the history of their development, we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power. Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts. And the law is the definition and limitation of power. It is, indeed, quite true, that there must always be lodged somewhere, and in some person or body, the authority of final decision; and in many cases of mere administration the responsibility is purely political, no appeal lying except to the ultimate tribunal of the public judgment, exercised either in the pressure of opinion or by means of the suffrage. But the fundamental rights to life, liberty, and the pursuit of happiness, considered as individual possessions, are secured by those maxims of constitutional law which are the monuments showing the victorious progress of the race in securing to men the blessings of civilization under the reign of just and equal laws, so that, in the famous language of the Massachusetts Bill of Rights, the government of the commonwealth "may be a government of laws and not of men." For, the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself.
In King v. Burwell in 2015, Justices Scalia, Thomas and Alito, issued a dissenting opinion to emphasize the following:
"More importantly, the Court forgets that ours is a government of laws and not of men. That means we are governed by the terms of our laws, not by the unenacted will of our lawmakers" (much less the will of unelected judges). They (quoting a prior SCOTUS decision) emphasized that "this Court 'has no roving license . . . to disregard clear language" in controlling authority.
In Morrison v. Olson in 1988, Justice Scalia issued a dissenting opinion to emphasize profoundly important principles (and a final phrase (below) for which his opinion might be remembered even more than for the principles he emphasized):
It is the proud boast of our democracy that we have "a government of laws and not of men." Many Americans are familiar with that phrase; not many know its derivation. It comes from Part the First, Article XXX, of the Massachusetts Constitution of 1780, which reads in full as follows:
"In the government of this Commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: The executive shall never exercise the legislative and judicial powers, or either of them: The judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men."
The Framers of the Federal Constitution similarly viewed the principle of separation of powers as the absolutely central guarantee of a just Government. In No. 47 of The Federalist, Madison wrote that "[n]o political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty." The Federalist No. 47, p. 301 (C. Rossiter ed. 1961) (hereinafter Federalist). Without a secure structure of separated powers, our Bill of Rights would be worthless, as are the bills of rights of many nations of the world that have adopted, or even improved upon, the mere words of ours.
The principle of separation of powers is expressed in our Constitution in the first section of each of the first three Articles. Article I, § 1, provides that "[a]ll legislative Powers herein granted shall be vested in a Congress [ ]." Article III, § 1, provides that "[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." And [ ] Art. II, § 1, cl. 1, provides that "[t]he executive Power shall be vested in a President of the United States of America."
But just as the mere words of a Bill of Rights are not self-effectuating, the Framers recognized "[t]he insufficiency of a mere parchment delineation of the boundaries" to achieve the separation of powers. Federalist No. 73, p. 442 (A. Hamilton). "[T]he great security," wrote Madison, "against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack." Federalist No. 51, pp. 321-322. Madison continued [by emphasizing the following crucial aspect of our Constitution]:
"But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates."
Justice Scalia continued with this highly relevant emphasis:
"That is what this suit is about. Power. The allocation of power among Congress, the President, and the courts in such fashion as to preserve the equilibrium the Constitution sought to establish -- so that "a gradual concentration of the several powers in the same department," Federalist No. 51, p. 321 (J. Madison), can effectively be resisted. Frequently an issue of this sort will come before the Court clad, so to speak, in sheep's clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf."
The "limiting principle" that Chief Justice Roberts seems to be pretending not to see is stated directly and unambiguously in our Constitution.
Our Constitution (our first and most important words as a nation) started by emphasizing the sovereignty of the People (not the President). “We the People” did “ordain and establish [our] Constitution” to “secure the Blessings of Liberty to ourselves.” The People expressly acted as the supreme legislative body in the U.S. to establish “the supreme Law of the Land.” Article VI and the oaths of office of all legislators and “all executive and judicial Officers, both of the United States and of [all] States” (including the President) emphasized that the foremost and constant duty of every such public servant is “to support [our] Constitution” in all official conduct.
Article II further emphasized that the first, foremost and constant duty of every president is to "preserve, protect and defend [our] Constitution." Every power of any president is limited by the president's overriding duty to "preserve, protect and defend [our] Constitution."
Article VI emphasized that the People vested (limited) power in Congress to enact “Laws” that were “made in Pursuance” of our “Constitution.” More specifically, Article I emphasizes that the People “vested in a Congress” “All legislative Powers," i.e., the power (and the duty) to make “all Laws” that are “necessary and proper for carrying into Execution” the “Powers” of Congress “and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”
Very clearly and irrefutably, Articles I, II and VI established that the People vested in Congress the power (and assigned the duty) to make laws that limit the powers of the president in Article II. Article II expressly emphasizes that the People “vested in a President” the “executive Power,” meaning the power (and the duty) to “take Care that the Laws be faithfully executed” and otherwise to “preserve, protect and defend” our “Constitution.”
In Federalist No. 51, James Madison (echoing John Locke’s Second Treatise of Government) emphasized, “In republican government, the legislative authority necessarily predominates.” In Federalist No. 48, Madison elaborated regarding the powers of national and state legislatures: “The legislative department derives a superiority in our governments from other circumstances,” including that “[i]ts constitutional powers” are “more extensive, and less susceptible of precise limits” than the executive or judicial departments. In addition, “the legislative department alone has access to the pockets of the people” to fund the operations of our public servants. Madison also emphasized that “[i]n a democracy,” the “people exercise in person the legislative functions,” but in our “representative republic,” the people in “the constitution of the government” (our Constitution) established “the boundaries” of “the legislative, executive, and judiciary departments” as “barriers against the encroaching spirit of power” of any employee or employees of any such department.
The People never vested any power in any public servant (or any combination of public servants) to violate any law (or commit any crime), much less violate or undermine our Constitution. That necessarily was a primary principle emphasized by our Constitution, above, and by Chief Justice Marshal (and SCOTUS) in Marbury v. Madison.
The people who founded our nation and those who wrote or ratified the original Constitution (and very promptly thereafter amended it to include the Bill of Rights) repeatedly sought to emphasize a particular governing principle. As Chief Justice Marshall (speaking for SCOTUS) plainly put it in Marbury v. Madison in 1803, "The government of the United States has been emphatically termed a government of laws, and not of men."
SCOTUS in Youngstown Sheet & Tube Co. v. Sawyer in 1952 emphasized that Article II emphasized that the president "shall take Care that the Laws be faithfully executed," and that "authority" is emphatically limited by the "words of the Fifth Amendment that 'No person shall be . . . deprived of life, liberty or property, without due process of law . . . .' One gives a governmental authority that reaches so far as there is law, the other gives a private right that authority shall go no farther. These signify about all there is of the principle that ours is a government of laws, not of men, and that we submit ourselves to rulers only if under rules."
As Justice Frankfurter put it in his concurring opinion in Cooper v. Aaron in 1958 (quoting the concurring opinion of Justices Frankfurter, Black and Douglas in United States v. United Mine Workers in 1947):
"The historic phrase 'a government of laws and not of men' epitomizes the distinguishing character of our political society. When John Adams put that phrase into the Massachusetts Declaration of Rights he was not indulging in a rhetorical flourish. He was expressing the aim of those who, with him, framed the Declaration of Independence and founded the Republic. 'A government of laws and not of men' was the rejection in positive terms of rule by fiat, whether by the fiat of governmental or private power. Every act of government may be challenged by an appeal to law, as finally pronounced by this Court. Even this Court has the last say only for a time. Being composed of fallible men, it may err. But revision of its errors must be by orderly process of law. The Court may be asked to reconsider its decisions, and this has been done successfully again and again throughout our history. Or, what this Court has deemed its duty to decide may be changed by legislation, as it often has been, and, on occasion, by constitutional amendment.
"But from their own experience and their deep reading in history, the Founders knew that Law alone saves a society from being rent by internecine strife or ruled by mere brute power however disguised. 'Civilization involves subjection of force to reason, and the agency of this subjection is law.' (Pound, The Future of Law (1937) 47 Yale L. J. 1, 13.) The conception of a government by laws dominated the thoughts of those who founded this Nation and designed its Constitution, although they knew as well as the belittlers of the conception that laws have to be made, interpreted and enforced by men. To that end, they set apart a body of men, who were to be the depositories of law, who by their disciplined training and character and by withdrawal from the usual temptations of private interest may reasonably be expected to be 'as free, impartial, and independent as the lot of humanity will admit.' So strongly were the framers of the Constitution bent on securing a reign of law that they endowed the judicial office with extraordinary safeguards and prestige. No one, no matter how exalted his public office or how righteous his private motive, can be judge in his own case. That is what courts are [meant to be] for."
SCOTUS in Yick Wo v. Hopkins in 1886 emphasized the vital importance of remaining true to the principle that our Constitution established "a government of laws and not of men" to protect us all from "the play and action of purely personal and arbitrary power." SCOTUS emphasized that "the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails." It is "the essence of slavery itself."
See Yick Wo v. Hopkins, 118 U.S. 356, 369-370 (1886):
When we consider the nature and the theory of our institutions of government, the principles upon which they are supposed to rest, and review the history of their development, we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power. Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts. And the law is the definition and limitation of power. It is, indeed, quite true, that there must always be lodged somewhere, and in some person or body, the authority of final decision; and in many cases of mere administration the responsibility is purely political, no appeal lying except to the ultimate tribunal of the public judgment, exercised either in the pressure of opinion or by means of the suffrage. But the fundamental rights to life, liberty, and the pursuit of happiness, considered as individual possessions, are secured by those maxims of constitutional law which are the monuments showing the victorious progress of the race in securing to men the blessings of civilization under the reign of just and equal laws, so that, in the famous language of the Massachusetts Bill of Rights, the government of the commonwealth "may be a government of laws and not of men." For, the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself.
In King v. Burwell in 2015, Justices Scalia, Thomas and Alito, issued a dissenting opinion to emphasize the following:
"More importantly, the Court forgets that ours is a government of laws and not of men. That means we are governed by the terms of our laws, not by the unenacted will of our lawmakers" (much less the will of unelected judges). They (quoting a prior SCOTUS decision) emphasized that "this Court 'has no roving license . . . to disregard clear language" in controlling authority.
In Morrison v. Olson in 1988, Justice Scalia issued a dissenting opinion to emphasize profoundly important principles (and a final phrase (below) for which his opinion might be remembered even more than for the principles he emphasized):
It is the proud boast of our democracy that we have "a government of laws and not of men." Many Americans are familiar with that phrase; not many know its derivation. It comes from Part the First, Article XXX, of the Massachusetts Constitution of 1780, which reads in full as follows:
"In the government of this Commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: The executive shall never exercise the legislative and judicial powers, or either of them: The judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men."
The Framers of the Federal Constitution similarly viewed the principle of separation of powers as the absolutely central guarantee of a just Government. In No. 47 of The Federalist, Madison wrote that "[n]o political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty." The Federalist No. 47, p. 301 (C. Rossiter ed. 1961) (hereinafter Federalist). Without a secure structure of separated powers, our Bill of Rights would be worthless, as are the bills of rights of many nations of the world that have adopted, or even improved upon, the mere words of ours.
The principle of separation of powers is expressed in our Constitution in the first section of each of the first three Articles. Article I, § 1, provides that "[a]ll legislative Powers herein granted shall be vested in a Congress [ ]." Article III, § 1, provides that "[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." And [ ] Art. II, § 1, cl. 1, provides that "[t]he executive Power shall be vested in a President of the United States of America."
But just as the mere words of a Bill of Rights are not self-effectuating, the Framers recognized "[t]he insufficiency of a mere parchment delineation of the boundaries" to achieve the separation of powers. Federalist No. 73, p. 442 (A. Hamilton). "[T]he great security," wrote Madison, "against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack." Federalist No. 51, pp. 321-322. Madison continued [by emphasizing the following crucial aspect of our Constitution]:
"But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates."
Justice Scalia continued with this highly relevant emphasis:
"That is what this suit is about. Power. The allocation of power among Congress, the President, and the courts in such fashion as to preserve the equilibrium the Constitution sought to establish -- so that "a gradual concentration of the several powers in the same department," Federalist No. 51, p. 321 (J. Madison), can effectively be resisted. Frequently an issue of this sort will come before the Court clad, so to speak, in sheep's clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf."
The "limiting principle" that Chief Justice Roberts seems to be pretending not to see is stated directly and unambiguously in our Constitution.
Our Constitution (our first and most important words as a nation) started by emphasizing the sovereignty of the People (not the President). “We the People” did “ordain and establish [our] Constitution” to “secure the Blessings of Liberty to ourselves.” The People expressly acted as the supreme legislative body in the U.S. to establish “the supreme Law of the Land.” Article VI and the oaths of office of all legislators and “all executive and judicial Officers, both of the United States and of [all] States” (including the President) emphasized that the foremost and constant duty of every such public servant is “to support [our] Constitution” in all official conduct.
Article II further emphasized that the first, foremost and constant duty of every president is to "preserve, protect and defend [our] Constitution." Every power of any president is limited by the president's overriding duty to "preserve, protect and defend [our] Constitution."
Article VI emphasized that the People vested (limited) power in Congress to enact “Laws” that were “made in Pursuance” of our “Constitution.” More specifically, Article I emphasizes that the People “vested in a Congress” “All legislative Powers," i.e., the power (and the duty) to make “all Laws” that are “necessary and proper for carrying into Execution” the “Powers” of Congress “and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”
Very clearly and irrefutably, Articles I, II and VI established that the People vested in Congress the power (and assigned the duty) to make laws that limit the powers of the president in Article II. Article II expressly emphasizes that the People “vested in a President” the “executive Power,” meaning the power (and the duty) to “take Care that the Laws be faithfully executed” and otherwise to “preserve, protect and defend” our “Constitution.”
In Federalist No. 51, James Madison (echoing John Locke’s Second Treatise of Government) emphasized, “In republican government, the legislative authority necessarily predominates.” In Federalist No. 48, Madison elaborated regarding the powers of national and state legislatures: “The legislative department derives a superiority in our governments from other circumstances,” including that “[i]ts constitutional powers” are “more extensive, and less susceptible of precise limits” than the executive or judicial departments. In addition, “the legislative department alone has access to the pockets of the people” to fund the operations of our public servants. Madison also emphasized that “[i]n a democracy,” the “people exercise in person the legislative functions,” but in our “representative republic,” the people in “the constitution of the government” (our Constitution) established “the boundaries” of “the legislative, executive, and judiciary departments” as “barriers against the encroaching spirit of power” of any employee or employees of any such department.
The People never vested any power in any public servant (or any combination of public servants) to violate any law (or commit any crime), much less violate or undermine our Constitution. That necessarily was a primary principle emphasized by our Constitution, above, and by Chief Justice Marshal (and SCOTUS) in Marbury v. Madison.