- - Tuesday, September 8, 2015

Republican presidential hopefuls Ted Cruz, Rand Paul, Mike Huckabee, Bobby Jindal and Scott Walker (“Gang of Five”) have fired bullets at the U.S. Constitution and the rule of law.

They have aggressively championed the doctrine that public officials sworn to support the Constitution should be permitted to defy constitutional decrees of the U.S. Supreme Court with impunity. They are inviting every man or woman to become a law unto themselves, i.e., anarchy.

In the spirit of Jesus, they should be forgiven because they know not what they are doing. They are ignorant of Jesus’ injunction: “Render to Caesar the things that are Caesar’s, and to God the things that are God’s.” And they have forgotten Republican President Abraham Lincoln’s homage to the rule of law as the nation’s political religion. Speaking before the Young Men’s Lyceum of Springfield, Illinois, in 1938, Lincoln elaborated:

“Let every American, every lover of liberty, every well wisher to his posterity, swear by the blood of the Revolution, never to violate in the least particular, the laws of the country; and never tolerate their violation by others. As the patriots of seventy-six did to the support of the Declaration of Independence, so to support of the Constitution and Laws, let every American pledge his life, his property, and his sacred honor;—let every man remember that to violate the law, is to trample the blood of his father, and to tear the character of his own, and his children’s liberty.”

Judicial review is the crown jewel of the Constitution and the cornerstone of the rule of law.



That is not because Supreme Court justices are infallible. To err is human. Accordingly, the Supreme Court has overruled hundreds of misbegotten precedents.

Judicial review, nevertheless, remains compelling. The justices enjoy life tenure and protection against diminished compensation, which promotes impartiality. They are shielded from the distorting influence of partisan politics, which tends to reduce the Constitution to nothing more than a jumble of political calculations with ulterior motives.

To contemplate judicial review alternatives is to become alarmed. Congress would, as a general matter, never rebuke its handiwork as unconstitutional. Its members are often ill-trained in the law. And their allegiance is nearly always to their political ambitions, not to the Constitution. They can be relied upon to act in the spirit of Sen. Thomas Eagleton’s colleague, who, after listening to a debate on President Richard Nixon’s veto of the War Powers Resolution, retorted: “I heard your argument, I agree with you, I love the Constitution, but I hate Nixon more.”

If the president were the final word on constitutional questions, we would witness limitless presidential authority indistinguishable from dictatorship. We would have embraced the lawless doctrine of President Nixon which occasioned his removal, i.e., “When the President does it, that means it is not illegal.”

The case of Kim Davis, an elected Rowan County, Kentucky, clerk, precipitated the assault on the Constitution and the rule of law by the Gang of Five.

Pursuant to Article VI, Ms. Davis was required to swear or affirm her support for the Constitution in issuing marriage licenses. Among other things, that oath meant Ms. Davis could not refuse to issue a license because the applicant was a Jew, Muslim, Hindu, Buddhist,or of other religious persuasion. If at any time Ms. Davis no longer wished to discharge her constitutional obligation, she was entitled to resign and to champion her religious, political or ideological convictions as a private citizen through legislation, constitutional amendment, litigation, education, personal behavior or otherwise. What Ms. Davis could not do was collect her government paycheck while neglecting to honor her oath of office by refusing to issue a marriage license to same-sex couples in violation of the Supreme Court’s decree in Obergefell v. Hodges. That attitude smacks more of mammon than of piety. (greed or wealth?)

Supreme Court Justice Benjamin Curtis resigned in part to protest the odious Dred Scott decision declaring that black citizens had no rights which white citizens were required to respect. Attorney General Elliot Richardson resigned rather than execute Nixon’s illegal order to fire special prosecutor Archibald Cox. But Ms. Davis did not follow these venerable models by resigning her government office.
She was thus held in civil contempt and incarcerated by U.S. District Judge David Bunning, an appointee of President George W. Bush and son of conservative Kentucky Sen. Jim Bunning. She did not resist the rule of law, and commendably acquiesced in Judge Bunning’s sanction as the price of civil disobedience.

The Gang of Five, in contrast, are sermonizing in favor of government lawlessness law based on the personal convictions of officeholders without penalty. Sen. Ted Cruz, for instance, has decried Judge Bunning’s civil contempt sanction as “judicial tyranny.” And Sen. Rand Paul has condemned the sanction as “absurd,” which places him closer to anarchist Mikhail Bakunin than to philosopher John Stuart Mill.

The Gang of Five need education in the obvious as amplified by Justice Louis D. Brandeis: “In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example … If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.”

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