Have We Abandoned the Rule of Law?

Whatever happened to the teaching of civics?  Does it still occur in American classrooms?  If so, what form does it take?  I just pulled the Kentucky Core Academic Standards (page 540) where I took a look at the section on US government and civics.  All in all, the topic list looks good, although the teaching could take many different forms depending on who is doing the teaching.  When I was in school a few (ahem) years back, our US government system was taught very simply and clearly from the time I was an elementary child.  At home, my father expanded my education in citizenship with messages of the privileges, rights, and responsibilities of being an American in a democratic republic.

I have a very good friend – a very politically liberal friend – with whom I have debated through the years.  A few years ago, he obtained his US citizenship after a lengthy period of study and testing.  I was very proud for him and of him.  In the same conversation in which we discussed his newly obtained citizenship, he brought up universal health care.  He shared his opinion that President Obama needed to pack the court with liberal justices who would establish universal health care as the law of the land (which is exactly what Obama did, by the way when it ruled on the individual mandate).  His belief was that a constitutional change was just too tough to get through Congress and that this was too important to leave to the people.

I was absolutely appalled, and my strong reaction took him back.  I knew people believed this, but I'd never had anyone say it to me before.  I didn't react against his views on universal health care, but rather on his proposed path to get there.  As I told him, “You clearly missed the lesson on the rule of law and how this country works when you got your US citizenship.  Maybe we should send you back through.  Have a seat and prepare to listen, because I’m going to take you to school and explain it to you.”  And I did – a little more forcefully than I originally meant to.

I first explained that if a country is to be ruled by law, the Supreme Court is not the one to make it.  Our Founders clearly understood this.  It’s why the Founders, after carefully studying every form of government known to history at that time, set up three branches of government with clear separation of powers.  As most of us learned long ago, the role of each branch is quite simple.  The legislative branch (Congress) represents the people and makes the laws.  The executive branch under the President enforces the laws (and is obligated to do so whether he agrees with them or not).  The judicial branch through the Supreme Court (and lower federal courts) interprets the laws and executive actions in light of the constitution and does NOTHING MORE than rule on their constitutionality.  When the Supreme Court bypasses the constitution or “legislates from the bench” in ways which the constitution does not address, our form of government is in big trouble. 

Yes, it is hard to change the United States Constitution.  It is supposed to be hard, and it should be!  Our Founders understood that public opinion is a fickle beast.  Public opinion changes and sways with the whims of the moment.  Our Founders did not wish us the ability to easily change our operating rules.  Change is permitted only after the country is so overwhelmingly convinced that a course of action is right that there is no recourse but to accept it.  This is a good thing!

When new law is created unilaterally by Supreme Court decision , it is not just the specific issue at hand that is impacted – it is the very foundation of our form of government which is shaken.  When all it takes to change the constitution (via novel interpretation) is “packing the court” with favorable justices, we are in great danger as a nation.

Unfortunately, this "legislating from the bench" has just happened again!  There is no rational jurist who could possibly see a “right” to same-sex marriage in the current constitution and legislation within the intent of prior constitutional action.  If the country wanted to enact same-sex marriage, it should have been done through the legislative process.  It was not.  This monumental change was done by packing the court with ideologues who displayed little respect for the intent of the law nor for the constitution as currently established.

For those of you who cheered this decision, you should think twice.  Five justices does not a landslide make.  What will happen when the political winds change and your opponents pack the court with their ideologues?  Are you prepared for this ruling to be overturned?  Are you prepared for new rights you don't like to be found?  Is this the way to govern?  I say "Absolutely Not!"

The concept of our government really is quite simple.  We have a constitution laying out the operating rules.  We have branches of government with clear roles to play as defined by that constitution.  We have a process to change the rules (constitution) if the country so desires.  Either we play by the rules, or we risk implosion of the whole system.  Is winning your pet position worth the risk of losing the country?

The genie is out of the bottle now, and I’m not sure how to put him back in.  It will take all of us demanding that we all play by the same rules and refusing to tolerate anything else.  It means we should admit when we haven't done this and walk those decisions back.  For the sake of the country, I hope we come together on this before the whole system unravels.  The stakes are far too high to do otherwise.