Why Not One Governor is Qualified to be President
Our Constitution has become a suicide pact.
That’s the view of Thomas Jefferson, expressed in an 1819 letter to jurist Spencer Roane, when he said “If this opinion be sound, then indeed is our constitution a complete felo de se” (suicide pact). The opinion Jefferson referred to is the legitimacy of judicial review, the idea, as he put it, that “gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres.” He warned that accepting such a doctrine makes “the Judiciary a despotic branch” that acts as “an oligarchy.”
That “opinion” has been accepted. The despotism has befallen us. The oligarchy reigns.
In recent times federal judges have ruled that Arizona must provide driver’s licenses for illegal aliens, states such as Utah and Alabama must allow faux marriage, and a Wisconsin voter-identification law is unconstitutional. And these are just a few examples of judicial usurpations that continue unabated and go unanswered. But the answer, which needs to be given first and foremost by governors, is simple:
“No. No -- I will not abide by the court’s unjust ruling.”
(Note: while my main focus here is our much abused judicial review, I’m advocating the same course with respect to all unconstitutional dictates.)
If this seems radical, note that even Abraham Lincoln agreed, saying in his first inaugural address, “[I]f the policy of the government, upon the vital questions affecting the whole people, is to be irrevocably fixed by the decisions of the Supreme Court…the people will have ceased to be their own masters, having to that extent resigned their government into the hands of that eminent tribunal.”
The process I’m advocating here is known as nullification. And should anyone still think it radical or unprecedented, know that we’d only be taking a leaf out of the Left’s book. Explanation?
What do you think “sanctuary cities” are?
They’re places where liberals have decided they’re simply going to resist federal immigration law.
What do you think is happening when states (e.g., Colorado) and leftist municipalities ignore federal drug laws? Nullification is happening.
Yet no matter how egregious, un-American, unconstitutional and despotic the federal or judicial usurpations, the conservative response is typified by what Utah governor Bob Herbert said — feeling oh-so principled, I’m sure — after the federal faux-marriage ruling: “[U]ltimately we are a nation of laws and we here in Utah will uphold the law.” In other words, he felt compelled to play by rules the Left laughs at.
We hear a lot of talk about “states’ rights.” Ex-Texas governor Rick Perry was a good example of a big talker. But where’s the beef? There have been nullification efforts by state legislatures, mainly regarding federal gun-control law, and many sheriffs across the country have vowed not to enforce such law. And Alabama’s Judge Roy Moore is currently defying a federal faux-marriage ruling. This is laudable, but why are the chief executives MIA?
We’re meant to be a nation of states, not a nation state. But rights mean nothing if you’re not eternally vigilant in their defense, if you don’t actively stand against those who would trample them. This is why I say not one governor is truly qualified to be president: If a chief executive will not oppose federal tyranny while the head of a state government, why should we think he’d oppose federal tyranny once head of the federal government?
History teaches that entities don’t willingly relinquish power; it didn’t happen in 1776 and it won’t happen now. People are generally quite zealous about increasing their power, though. This returns us to the courts’ usurpations. Do you know where the power of “judicial review” came from? It was declared in the 1803 Marbury v. Madison decision -- by the Supreme Court.
That’s right: the Supreme Court gave the Supreme Court the Supreme Court’s despotic power.
Of course, unilateral declarations of power are not at all unusual historically. It’s what happened whenever an agent of tyranny -- whether it was a conquering king, communist force or crime syndicate -- took over. But these despotisms were enforced, as Mao put it, “through the barrel of a gun.” It wasn’t usually the case that the subjects rolled over like trained dogs lapping up lawyer-craft.
Perhaps it needn’t be stated, but the power of judicial review isn’t in the Constitution. So is it any wonder that a federal court, concerned about Barack Obama’s comments relating to the judiciary, asked his administration in 2012 to submit a formal letter indicating whether or not it recognized the power? Judicial review, being an invention, is dependent upon the acquiescence of the other two branches of government.
Oh, and what is Obama’s actual position? He believes in the court’s power -- when it serves his agenda. Otherwise, he’s willing to ignore court rulings himself, as he did when suing Texas over voter ID in 2013. (In fact, never mind the courts. Obama ignores duly enacted federal law he doesn’t like.)
We can even learn from Obama.
The idea of judicial review is thoroughly un-American. As Jefferson also pointed out, judges are not morally superior to anyone else, having “with others the same passions for party, for power, and the privilege of their corps.” Despite this, he wrote in his letter to Roane, while we’re meant to have “three departments, co-ordinate and independent, that they might check and balance one another,” judicial review has given “to one of them alone, the right to prescribe rules for the government of the others”; moreover, he continued, this power was given to the very branch that “is unelected by, and independent of the nation.” Jefferson then warned that this has made the Constitution “a mere thing of wax in the hands of the judiciary, which they may twist, and shape into any form they please.” And our country is being twisted along with it as patriots twist in the wind.
Jefferson’s position is just common sense. We cannot be a government of, by and for the people if 9 unelected Americans in black robes can act as an oligarchy and impose their biased vision of the law on 317 million Americans. That is not what the Founding Fathers intended.
Nonetheless, most conservatives are waiting for the next election or the next court ruling or the next president to right the ship, but they and their republic will die waiting when remedial action can be taken now. Nullification -- when properly exercised, it’s a fancy way of saying “standing up for the law of the land.” Were I a governor, I’d tell the feds to pound sand and that if they didn’t like it, to send in the troops. I might ultimately end up in federal prison, but I’d light a fire and spark a movement -- and become a hero and martyr to millions.
It’s waiting there for you, governors, glory and God’s work. We just need a leader, someone with greater passions for principle than “for party, for power.” It’s waiting.
Rise, American hero, rise.