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The concept of the rule of law is the bedrock of the U.S. Constitution. The founders agreed that for an orderly society to survive, we had to agree to a set of rules by which we would organize around, limit government power and create laws that would be evenly enforced and fairly applied. For the nearly 240 years our Republic has existed, these principles have stood the test of time. However, it is now eroding in ways previously thought unimaginable.
James Madison, who wrote the model that framed the U.S. Constitution, said, “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place, oblige it to control itself.”
We are witnessing systematic chipping away at the adherence to written laws instead of working through the legislative process, courts of law or elections to challenge grievances.
Former President Barack Obama issued his infamous statement to form laws more to his liking with his “pen and his phone.” The Department of Justice—namely the FBI—decided that the process and rules for investigating Americans did not apply to them. They operated lawlessly rationalizing that they self-righteously needed to save the country from a duly elected president they did not like. We saw it when Acting Attorney General Sally Yates, the nation’s top law enforcement officer at the time, publicly resisted the authority of the president when she said she would not instruct the Justice Department officials to carry out President Trump’s lawful order on Muslim refugees traveling to the United States. We saw it when several states, cities, and counties defied the Supremacy Clause of the Constitution and federal law concerning illegal aliens and declared themselves sanctuary cities. Some county sheriffs have done the same saying they will not enforce state laws relative to firearms without doing it through the state legislature or the courts. The Weld County sheriff has even vowed to go to prison rather than administer a duly passed state law. Remember when after the U.S. Supreme Court upheld gay marriage in Obergefell v Hodges, Kentucky County Clerk Kim Davis refused to issue marriage licenses to gay couples citing personal religious objections to same-sex marriage? She chose incarceration for refusing the Court’s decision. A Supreme Court decision has the effect of law. Whether one agrees with it or not is irrelevant. These gun control laws, including red flag laws, are a thinly veiled anti-gun scheme and seem to be unconstitutional but refusing to enforce them is not how we should go about it.
We have history to rely on where government officials tasked with enforcement authority decided that they were the law. In 1963 Birmingham Alabama Police Commissioner Bull Connor adamantly refused to carry out civil rights laws while defending segregation. Democrat Governor George Wallace stood in the schoolhouse door at the University of Alabama and defied the Supreme Court order to desegregate public schools in his state. This is the slippery slope of men and women deciding that the duly passed laws of the state or federal government mean nothing to them.
Now we have state prosecutors in Georgia’s five most populous counties saying they will not enforce the state’s legislatively enacted heartbeat law that prohibits abortion after a heartbeat is detected.
This stuff might make for good sound bites, but it is all outside of our agreement to be a nation of laws and not a nation of men and women. When government officials both elected and appointed fail to live up to their sworn oath to administer the law and instead decide they are the law, the laws are thereby not consistently applied and this create an ethics gap. What they swear to in their oath doesn’t reflect the way they behave. It shakes people’s faith and trust in government. Confusion and chaos follows. These people are substituting their judgment for what the duly passed law says. Folks, this puts us on a road to a very dark place—anarchy.
I don’t care about these government officials’ high mindedness or ego-driven crusade. I care about the law and the process used to enact and enforce it. If certain people do not like duly passed laws, then they need to work through the legislative process and the political process to build a critical mass of people to change it through elections or petitioning the Court for relief. I hesitate to encourage appealing to courts; however because it invites a temptation for judges to engage in political high jinx and activism or act like a super-legislature. Think Justice John Roberts and Obamacare. We then become ruled by people in black robes instead of leaving to the elected legislatures that lawmaking authority, which is reserved for them.
This attitude of deciding which laws we will follow or evenly enforce is problematic. Once we get used to it, it will become a habit, once it becomes a habit the government loses its legitimacy. When that happens, we are no longer a constitutional republic. We cease to be a government of laws and return to the type of governance under King George. We become subject to the whims of particular people or groups who are known to intimidate and bully to get their way. This is a shortcut, the lazy way out.
Read your Declaration of Independence. The list of grievances cited by the signers is eerily upon us again.
Sheriff David Clarke Jr. is former Sheriff of Milwaukee Co, Wisconsin, President of AmericasSheriff LLC, Senior Advisor for America First, author of the book Cop Under Fire: Beyond Hashtags of Race Crime and Politics for a Better America. To learn more visit www.americassheriff.com