President Obama described the recent police officer ambush in Baton Rouge as an attack upon “the rule of law.” Indeed, it was. Yet, such anarchy is a predictable consequence in a nation whose leaders disrespect “the rule of law” on a regular basis, especially so when that nation is a constitutional republic.
You have often heard we are a “nation of laws and not of men.” The words are attributable to John Adams and, while the concept can be found in ancient Greek culture, humankind didn’t take it for a meaningful spin until our Constitution was ratified in 1788. Otherwise known as “The Rule of Law,” it has enjoyed a very good ride, paid for by the lifeblood of over 1.3 million of our military. What is it and how much is it worth to us, the beneficiaries of their sacrifice?
For thousands of years prior to our founding, humanity had lived under the rule of kings of one sort or another, but our Founders initiated a new experiment whereby people would attempt to rule themselves “under law.”
“The maxim states that men should not be trusted to rule others unless their rule is tempered by fixed laws that prevent tyranny, laws that prevent individuals from accumulating wealth by force, laws that prevent those in high office from exercising power over the populace without restraint, laws that prevent the majority from acting without a due regard for the rights and well-being of individuals, laws that prevent the powerful from plundering the weak.” Illinois State University.
Supreme Court Justice Louis Brandeis (Democrat and early leader of the progressive movement in America) said: “Our government...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.” Olmstead v. United States (1928).
Fast and Furious…IRS targeting of conservatives…IRS destruction of evidence in the midst of an investigation…Veterans’ Administration fabrication of evidence…Benghazi…Eric Holder perjury…GSA Las Vegas extravaganzas…Solyndra…New Black Panthers…release of convicted violent illegal aliens…then there is Hillary (private servers, destruction of evidence, lying to Congress and the FBI, extremely careless actions putting our nation and people at risk).
And I almost forgot Comey and Lynch. No accountability for anything on the foregoing short list, all pointing to a complete disregard for the Rule of Law. I have never seen anything like this in my lifetime and I am not at all surprised at the levels of chaos and anarchy occurring in our land, most all of which is directly or indirectly attributable to contempt for the Rule of Law in the highest places.
When President Obama cannot persuade Congress to legislate according to his dictates, he takes his pen and does it for them. Obamacare doesn’t come close to resembling the legislation actually passed by Congress. His “amendments” are too numerous to mention, but exempting his friends are examples that come to mind.
But all of the foregoing involve some level of intentional wrongdoing, negligence and/or dishonesty. Ironically, the primary motivation for this op-ed piece was born out of an act of honesty that seems to have evaded national attention.
I speak of the comments prepared for Slate.com last month by Judge Richard A. Posner. At age 77 he is now in his 35th year on the 7th Circuit Court of Appeals and a senior lecturer at the University of Chicago Law School. Yes, that is the same law school where President Obama claims to have been a constitutional law professor.
Sitting Judge Posner said: “I see absolutely no value to a judge of spending decades, years, months, weeks, day, hours, minutes, or seconds studying the Constitution, the history of its enactment, its amendments, and its implementation…” He doesn’t feel the Constitution is relevant today.
Time and space do not permit a discussion of why he is completely off base as to his conclusion, but however appropriate such a conclusion may be argued by a retired judge or practicing law professor, it is unforgivable as a sitting judge.
After being criticized by some, Judge Posner attempted to walk his comments back. He suggested that discrediting the Constitution was not his intention and that unfortunately some had “focused on language I used that could be read as suggesting that I don’t think the Constitution has any role to play in interpreting the law – that it should be forgotten…” Precisely. While it may well be unfortunate if he used words he did not intend, there is no walking back the words he, in fact, used.
At a minimum, prior to taking office as a federal judge, Richard A. Posner had to take an Article VI oath – a solemn promise regarding future action – “to support” the Constitution. Had he failed to do so after being confirmed for the job, he could not have legally (“constitutionally”) donned a robe. He either lied when he took his oath or he has changed his mind over the years. Assuming the latter, I more than appreciate his honesty. Now, in order to maintain the integrity that honesty demands, he should voluntarily resign.
If resignation is not forthcoming, then I call upon the House of Representatives to bring charges of impeachment against Judge Posner in accordance with that nasty Constitution he so self-righteously disdains. Some “legal scholars” indicate that such a notion is silly – that disregarding one’s oath to support the nation’s supreme law of the land isn’t important enough to disqualify a sitting judge, even though the failure to initially take the oath would have so disqualified him. Article III states that federal judges hold office during “good behaviour,” implying their appointment is for life (i.e., until death or retirement or impeachment for “bad” behavior terminates it). I cannot imagine a more justifiable cause for impeachment.
Of course, I neither expect Judge Posner to resign nor to be impeached. The wisdom of the Framers was in crafting a balance of power that would best ensure the pursuit of happiness for a free people. The Constitution is not outdated. It has not failed us. We have failed to insist that our government live within its constraints – within The Rule of Law. Judge Posner’s comments are a direct, clear refutation of his solemn oath to support The Rule of Law, the supreme law of the land, our Constitution.
At a speech in Kalamazoo, Michigan, in 1856, Abraham Lincoln said: “Don’t interfere with anything in the Constitution. That must be maintained, for it is the safeguard of our liberties.” Not that there aren’t some needed changes for today, but Article V provides the method for such changes. Disregarding it is not an option.
In 1969, the then President of the American Bar Association, William T. Gossett, said: “The rule of law can be wiped out in one misguided, however well-intentioned generation. And if that should happen, it could take a century of striving and ordeal to restore it, and then only at the cost of the lives of many good men and women.”
And, Supreme Court Justice Tom Clark (Democrat and former Attorney General) said: “Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence.” Mapp v. Ohio (1961).
I believe we are experiencing the very destruction Justice Clark portended because we have permitted the Rule of Men to prevail over the Rule of Law. When the people of a nation witness their leaders go unpunished for violating the rule of law or for keeping their powerful positions as judges in spite of openly admitting they can no longer abide by their oath to support the charter of a nation, “the people” start believing they can take the law into their own hands. We have watched freedom go up in flames because far too many value free telephones, free contraceptives – free anything - more than freedom itself which apparently can be sold at a very cheap price, or so it seems.
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Tad Armstrong is an Edwardsville, Illinois, lawyer, founder of ELL Constitution Clubs (www.ellconstitutionclubs.com) and author of “It’s OK to Say ‘God.’”