“But while there are so many laws of our ancestors’ devising, and many that the deified [Emperor] Augustus enacted, the former have become ineffectual because they are forgotten, the latter (which is worse) because they have been flouted. This has only bolstered confidence in the life of luxury. For if you hanker after what is not yet forbidden, you may fear its being forbidden in the future. But if you have transgressed in a prohibited area and not been punished, there is no fear or shame after that.” — Tacitus, The Annals (1)
One of the themes that has been consistently focused on in this space has been the lawlessness of all parts of the national government. Now it seems that this rank lawlessness is accompanied by ignorance and/or contempt for the law and the Constitution. It is an amazing fact that this lawlessness, ignorance, and contempt are entrenched not only in elected politicians and senior Federal civil servants, but also in those who are entrusted with enforcing the law, the FBI, the Supreme Court, and Federal Judges.
Take the FBI. Under Director Comey — Tacitus might call him the “flouter-in-chief “— the FBI has proven itself to be the protective police for the American political elite. Now, each time he speaks, Comey’s words conjure those directed at a political opponent by perhaps the greatest non-interventionist of the early republic, Virginia’s John Randolph. “He is a man of splendid abilities,” Randolph said of his foe, “but utterly corrupt. He shines and stinks like rotten mackerel by moonlight.” (2)
It is, of course, old news, but Director Comey has established his legacy as the man who told all non-elite Americans that he will enforce the law against them, but not against their betters. A first-year prosecutor could have gotten an arrest warrant for Hillary Clinton with nothing more than three facts: (a) she set up an unclassified e-mail system to avoid the law requiring the retention of federal records; (b) she deliberately trafficked in classified information on that unclassified system and sent classified information to people who had no clearances; and (c) she lied to the Congress under oath on multiple occasions. Director Comey, however, must be too long out of law school to recall the fundamentals of his profession. Our, perhaps, he is happy to enforce the law against non-elite citizens, but is either fearful for his life if he takes on the elite, or he is being paid off by that entity. There does not seem to be a third possibility.
The Supreme Court has written its own well-deserved death warrant. During the ratification debate in 1787-1788, Hamilton, Jay, Madison, and other Federalists assured the citizenry that the anti-Federalists’ warnings that the Court would become a judicial tyranny, beyond the control of the people, were unfounded and indefensible. They even ridiculed their foes for fear-mongering.
But Hamilton and his centralizing colleagues were dead wrong, and the anti-Federalists were prescient republicans. The Federalists and especially the Anti-Federalists probably never imagined a citizenry so supine that it would allow — without undertaking armed rebellion — the republic to be ruled by nine unaccountable judges, many of whom, in the contemporary era, are often no more than berobed legal charlatans who twist the Constitution and the laws into shapes and meanings that are absurd and unsupportable by commonsense and human experience, let alone credible legal scholarship.
But that scenario is at hand. Witness Chief Justice Roberts’ argument and vote in support of Obama Care. Both would have earned him a failing grade in law school because Roberts’ seemed to know neither the law nor the Constitution. The first-year prosecutor mentioned above would have rendered a much more legally substantive and defensible decision. In a very real sense, all of the monetary costs, social divisiveness, wasted time, and political animosities in which the republic is now ensnared on the issue of healthcare are the direct responsibility of Chief Justice Roberts’ lawlessness and, apparently, his utter lack of commonsense and moral courage. Roberts’ is a most worthy successor to the civil war-fueling chief justice, Roger B. Taney.
Most recently, the national judiciary’s rife lawlessness has been seen in Federal judges blocking the implementation of President Trump’s attempt to protect Americans from at least a portion of the ongoing flow of violent Islamists — many under the guise of immigrants and refugees — into the United States. The clarity and constitutionality of the law under which Trump acted is irrefutable; indeed, his predecessors as president chose not to use the law fully and so knowingly exposed Americans to domestic attack. The judges who blocked this national-defense action knew that there is no valid legal basis for their actions, and so they have fled the legal arena for the more highly publicized field of self-made celebrity-hood and amateur mind-reading.
To please the bipartisan political elite they serve and protect, the judges found the non-existent in the Constitution. There is, for example, not a word in that document that provides a basis for believing that the 1st Amendment’s religion clause can be applied in any way to non-U.S. citizens residing in foreign countries. The Constitution was written by Americans for Americans, and any attempt to apply it as protection for overseas foreigners is either a form of madness, or a chauvinistic imperialism of a kind that could only be held by those who believe themselves superior beings fit to rule all of mankind. There was not a bit of this kind of totalitarian thinking in those who wrote the Constitution, but, sadly, it is today an all too common and debilitating mental malady among those power-hungry individuals who believe the synonym for judge is deity.
Not satisfied with finding something in the 1st Amendment that does not exist, and, with it, willingly endangering Americans, the two Federal judges also violated the legitimate and obvious protections for free speech contained in the 1st Amendment by basing their decision on what then-candidate Trump said during the presidential campaign. They, in essence, defend their unconstitutional action by (a) deciding that Mr. Trump is the only American who has no free-speech rights under the 1st Amendment and that he, and the republic, can be punished by the courts for his words; (b) believing that they can publicly abuse him for something he said, even though it has no legal bearing on what he does to legally execute constitutional immigration laws; and (c) claiming that they can read his mind — sort of law by tarot cards — and know without doubt that his supposed anti-Muslim beliefs, and not the obvious requirements of national defense, motivated his actions.
This is a judicial performance Mr. Orwell could have used in his book: judges using an unconstitutional attack on Trump’s free-speech rights to prevent the protection of Americans and their families. It would have been applauded by Stalin and Mao, and is being applauded by their ideological successors, Obama, Clinton, Soros, Sanders, Warren, and most of the media. That performance, however, cannot find legitimate justification anywhere in either the Constitution or the legal system founded thereon. It is simply another egregious example of the Federal judiciary’s lunacy-tinged and self-aggrandizing lawlessness.
Thomas Jefferson, as was his habit, swayed back and forth between the Federalists and Anti-Federalists. But on the reality of the Federal judiciary’s potential for tyranny, he was more often on side of the latter; that is, on the side whose dire warnings have proven accurate. “The great object of my fear is the federal judiciary,” Jefferson wrote in 1821. “That body, like gravity, ever acting, with noiseless foot, and unalarming advance, gaining ground step by step, and holding what it gains….” (3) Two years later, Jefferson laid out more fully his belief that the judiciary posed a clear threat of tyranny to the republic and so the end of republicanism. “At the establishment of our constitution,” Jefferson said,
“the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous; that the insufficiency of the means provided for their removal gave them a free hold and irresponsibility in office, that their decisions, seeming to concern individual suitors only, pass silent and unheeded by the public at large; that these decisions, nevertheless, become law by precedent, sapping, by little and little, the foundations of the constitution, and working its change by construction, before any one has perceived that that invisible and helpless worm has been busily employed in consuming its substance. In truth, man is not made to be trusted for life, if secured against all liability to account.” (4)
Having decided to side always with the bipartisan political elite, and immunize it from criminal charges, it is increasingly apparent that the FBI, the Supreme Court, and the Federal judiciary are the enemies of the citizenry, and of the republicanism on which America was founded, and without which it cannot survive. Also clear is that they are eager to keep pressing attacks on each, blatantly, repeatedly, and with an air of smug, god-like superiority. They seem to be absolutely confident that they are bulletproof and noose-proof, and so are free to continue their deepening lawlessness and deliberate destruction of the Constitution without fear of reprisal. They are in for a brutal surprise.
- Tacitus, The Annals. Oxford World Classics, (2008), p. 123
- John Randolph, “Congressional Speech,” http://www.theamericanconservative.com/articles/who-was-john-randolph/
- Thomas Jefferson to Charles Hammon, 18 August 1821
- Thomas Jefferson to Monsieur A. Corray, 31 October 1823