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Law and the Lawless

On Dec 20, our Rule of Law was attacked. U.S District Court Judge Robert Shelby singlehandedly cancelled 225 years of states’ rights to determine the laws by which they will be governed in a democratic republic. With all the aplomp of a rag doll, he threw aside Utah’s 2004 constitutional amendment, approved by 65.8% of us, that solidifies marriage as between a man and a woman. By this action, he set himself up as one man rule. Regardless of your beliefs on gay marriage, you should be dismayed that one unelected man, duty bound to protect the law, set himself above the law to silence your voice and will. No clearer definition of tyranny exists than this: the will of one prevails over the will of many.

Law at any level of government can be abused. Senator Mike Lee defined the lawlessness of those who abuse the law in his telephone town hall meeting 19 December of this year. He offered an example of lawlessness: President Obama’s Affordable Care Act. Though deplorably passed through deceit and bribery, Obamacare is the law. The president now cancels, revises, annuls and reassigns its elements. A president cannot do this—once a law is passed, he has no authority to change it; that is what kings do. Community leaders can also trammel the law when they disparage property rights. On a state level, Judge Shelby has entered lawless terrain with his invalidation of a Utah constitutional amendment.

When law is moveable—when it changes as it seesaws between opposites who take turns being the party up and the party down—no one is safe. The oppressor in one decade becomes the oppressed in the next. Fairness, impartiality and, invariably, freedoms become casualties. It is to avoid this rotating tyranny that we have inflexible laws.

Thomas Jefferson addressed individuals who undermine the law in a 1781 letter to Col. Vanmeter, “Laws made by common consent must not be trampled on by individuals.” The Framers installed a government of checks and balances to protect individual rights. Jefferson’s 1787 letter to Edward Carrington explained, “With all the imperfections of our present government, it is without comparison the best existing, or that ever did exist”.

As Jefferson stated, while the Founders’ system was brilliant, it was not perfect. The actions of Judge Shelby highlight a flaw in the Constitution—the court system can become tyrannical. A court system was essential in a nation of sovereign states to settle disputes among them and with foreign powers. With no historical pattern to point the way, the final document put few limitations and limited accountability on the judicial system. Jefferson, as president, saw this weakness and urged Congress to repair it. They failed to do so.

Jefferson might have steered the 1787 Constitutional Convention away from judicial weakness, but he was serving as US Ambassador to France. Decades later, in 1821, he referenced his concern about the “omission…(in) which lurks the germ that is to destroy this happy combination of national powers in the national government…”. This germ was the federal judiciary. He prophetically declared the nation would “pass to destruction by consolidation first, and then corruption, its necessary consequence. The engine of consolidation will be the federal judiciary“. We have proved Jefferson’s fears, as our courts, and judges such as Robert Shelby, tyrannically change the law, rather than align it with the Constitution, as is their duty.

Governor Herbert and the Utah Attorney General’s office are to be commended for their prompt actions to reinstate the rule of law in Utah. In a 1785 letter to John Jay, first Chief Justice of the Supreme Court, Jefferson said, “An insult unpunished (or, in this case, unopposed) is the parent of many others.” We may disagree on many things, but we surely agree that law must be upheld. Our safety depends on it.

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