Woman dressed as lady justice peeking at scales

The Two-Front War Against the Rule of Law

Four years ago, in the midst of a hotly contested presidential election, U.S. Supreme Court Chief Justice John Roberts told us that the penalty at issue in Obamacare could actually be construed as a “tax.”  Roberts properly rejected the theory under which the penalty could be upheld under Congress’s Commerce Clause regulatory power, but then re-wrote the law’s most controversial provision from the bench and upheld it under Congress’s independent taxation power.  This, despite the fact that Barack Obama, Nancy Pelosi, and Harry Reid repeatedly told the American people that the Obamacare penalty was not a tax, and that Roberts had famously assured us all in his 2005 confirmation hearing that his role as an impartial judge would be that of an umpire “call[ing] balls and strikes.”

Yesterday, in a similar midsummer undermining of the “rule of law as a law of rules” that props up the electoral chances of a Democrat running for President of the United States, FBI Director James Comey decided to tell us that to be “extremely careless” is not necessarily to be “grossly negligent.”  After properly laying out all the various reasons why Hillary Clinton, who repeatedly put national security at risk for the sake of personal comfort, should be indicted, Comey—who heads up an agency purportedly dedicated to exercising not prosecutorial discretion, but merely investigation—nonetheless recommended against any indictment.  This, despite the fact that Hillary Clinton has now officially lied to us repeatedly about her email saga, and despite the fact that there is literally no intellectually coherent difference—no “fine metaphysical distinction“—between what it means to be “extremely careless” and what it means to be “grossly negligent.”

The reality is that these phenomena are but two sides of the same coin—a coin which transcends a denial that words have objective meaning and amounts to a denial of sound republican self-governance itself.  Just as this Supreme Court term’s indefensible kowtowing under the guise of an alleged “strict scrutiny” standard in reviewing affirmative action and equally indefensible kowtowing to the prenatal infanticide lobby in the context of Planned Parenthood v. Casey‘s ostensible “undue burden” abortion standard evince such a flippant disdain for rule of law norms so as to necessitate the rallying of conservatives to repudiate the fallacious doctrine of judicial supremacy and institutionally declare war on the judiciary itself, so we must also begin to sober up to combatting the modern reality of a banana republic-like rule by corrupt elites.

Such is the nature of our current two-front war against the rule of law.

Justice Thomas summarized well the first, judicial front in his Whole Women’s Health v. Hellerstedt dissent: “[t]he majority’s embrace of a jurisprudence of rights-specific exceptions and balancing tests is ‘a regrettable concession of defeat—an acknowledgement that we have passed the point where ‘law,’ properly speaking, has any further application.’”  The second, elitist front is a bit more amorphous but equally devastating for legal neutrality: it is best encapsulated by the thoroughly unholy confluence of a public choice-driven corrupt GOP establishment that chooses a dimwitted, Putin-praising, war crimes-ordering would-be despot over a principled Leviathan-slashing constitutionalist, a Democratic establishment that barely seems able to put away a cantankerous septuagenarian USSR-honeymooning socialist communist in order to coronate a cattle futures-scandalized woman who repeatedly lied about her undermining American security and who brazenly lied to the families of those killed in Benghazi, Libya whilst those men were still lying in American flag-draped coffins, sundry “cultural cronyism” that threatens the very first freedom protected by the Bill of Rights, the Federal Reserve’s abetting one of the great underreported wealth transfers in U.S. history away from the poor and toward the well-connected elite, and the Dodd-Frank law’s distortion of credit allocation away from community banks and towards bulge-bracket Wall Street banks by means of its enshrining “Too Big to Fail.”

In short, Americans would be well-forgiven for thinking the game is rigged.  The stench of corruption stinks to high heaven.

It is nothing short of catastrophic that, amidst these dire circumstances, the presidential choice before the American people is between Hillary Clinton and Donald Trump—two of the most egotistical, lawless, consummate insiders to ever run in national politics over the past half-century.  As Erick said, if the GOP has any spine whatsoever, it will stand with many of its greatest leaders—Lincoln, Coolidge, Eisenhower, and Reagan—and attempt to rid us of this monstrously bad choice by freeing its delegates in Cleveland.



That sentiment is certainly right, and it is very difficult to think of a more important time to put country ahead of blind partisanship.  Such is the gravity of our present predicament.

In the interim, only two days removed from Independence Day, Americans of all political stripes would do well to carefully reread the words of the Declaration of Independence.  Specifically, we would do well to read the actual core of the Declaration—not just the lofty “When in the Course of human events…” and “We hold these truths to be self-evident…” prose near the document’s beginning.  The Declaration is, fundamentally, a protestation of concrete grievances against the British crown.  It is a moral appeal to the rejection of the thinking behind the “divine right of kings” that enabled George III’s belittling of the American colonists, and a concomitant proclamation that our rights do not come from government, but from our Creator.  The Constitution, the governmental charter ratified thirteen years later but which both present presidential candidates in 2016 now so greatly disdain, included structural safeguards against political actors’ raw ambitions that were inextricable to the Declaration’s eternal principles “to the end that individual liberty might be preserved.”

It is the very impartiality of the rule of law that motivated those patriots in the Boston Tea Party in 1773, just as it motivated CNBC’s Rick Santelli when he launched the modern Tea Party—first and foremost, a grassroots anti-crony capitalism movement—on the floor of the Chicago Board of Trade in 2009.  That impartiality of the rule of law requires that no one individual—not a monarch, not a presidential candidate, not a member of Congress, not a famous celebrity—be above it.  Unfortunately, that impartiality of the rule of law is precisely what is currently under assault from all sides and entities—including the establishments of both major political parties, and the Big Government anti-constitutional fraudsters for which both parties now blindly shill.

I sincerely fear for this country.  I really do.  But as members of the Resistance, we must try our best to be happy warriors and rededicate ourselves to the evangelization of the American republic’s timeless founding principles.  We must stand firmly for a durable rule of law which secures and protects our natural rights to life and liberty, and stand against the cronyist rule of a politburo-like elite that seeks to trample over them to amass power for itself.  Only then will America ever be truly great again.

About the author

Josh Hammer

Texas-based conservative activist. Sen. Mike Lee/#CruzCrew alum. Constitution, free enterprise, liberty, sovereignty, moral clarity, counter-jihadism. Follow me on Twitter at @josh_hammer.

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