Note: I’m giving over today’s blog to
distinguished anti-death penalty attorney, Marshall Dayan. Here’s what Marshall has to say about the
rule of law in contemporary America:
Americans are rightfully proud of our historical
leadership when it comes to support of the rule of law: this idea that the law
prevails and that our independent judicial system will apply the law to all in
a fair and consistent manner.
But a number of events over the past few weeks make
me wonder if the rule of law is losing some of its vitality in the United
States.
Supreme Court Justice Antonin Scalia recently told
law students at the University of Tennessee that they should think about revolting
if taxes get too high. He did not recommend that those opposed to high taxes organize politically
and elect representatives who would reduce high taxes. He suggested that they
consider a revolt.
In Nevada, a rancher, Cliven Bundy, has refused
to pay grazing fees for grazing his cattle on federal land for the past twenty
years. 16,000 other western cattle ranchers graze their cattle on federal
lands, and they pay grazing fees for doing so. Bundy has outspokenly
rejected the authority of the federal government and the Bureau of Land
Management (BLM) to charge him grazing fees, asserting that the land belonged
to the State of Nevada. The federal court rejected this argument and
ordered him to pay the fees. The court also found him to be trespassing
on federal law in the absence of payment. Bundy became a libertarian cause
célèbre by defying the court’s orders requiring him to pay the grazing
fees. (His image became tarnished when he revealed himself to be a
blatant racist, ironically chastising impoverished African-Americans for
availing themselves of federal government economic programs while he abused
government resources for his own economic advantage.) Rather than enforce
the court’s orders, BLM backed down, at least temporarily, in the face of armed
resisters who have gathered in Bunkerville, Nevada to defend Bundy’s continued
illegal grazing on federal lands.
In both cases, federal officials—Justice Scalia and BLM—have
weakened the concept of the rule of law.
Another example of abandoning the rule of law
came when the Supreme Court of Oklahoma recently issued a stay of execution to
protect its jurisdictional right to decide whether an Oklahoma statute barring
the revelation of the manufacturer of drugs for lethal injection violated the
state constitution. After the court ruled, Oklahoma Governor Mary Fallin defied
the court’s stay order. She issued an executive order scheduling two
executions for April 29, 2014. In issuing her executive order, Governor
Fallin wrongfully argued that the Oklahoma Supreme Court had acted beyond its
constitutional authority and therefore she would not follow its order. As
an aside, Oklahoma badly botched the first of two attempted executions. The
condemned prisoner, Clayton Lockett, died of a heart attack forty three minutes
after the lethal injection failed. Governor Fallin then delayed the
execution of the other prisoner, Charles Warner.
Our second President John Adams supposedly coined
the phrase, "a government of laws, and not of men.” Adams believed that
while all people are fallible, we strive to create rules to be applied fairly
and consistently. This idea comes directly from the Hebrew Bible.
Leviticus 19:15 commands, "You shall not render an unfair decision:
do not favor the poor or show deference to the rich; judge your neighbor
fairly.”
There will always be disputes about the boundaries
of government power. An independent judiciary is necessary to settle
these disputes. Without it, we run the risk of devolving into
chaos. In United States v. United
Mine Workers, Justice Felix Frankfurter wrote that “[t]here can be
no free society without law administered through an independent judiciary. If
one man can be allowed to determine for himself what is law, every man can.
That means first chaos, then tyranny.”
Political differences are healthy, and are to be
wrestled with in a democratic republic. But courts must remain
independent, and must be honored and respected by people of good will on all
sides of all issues, or we risk losing our democratic republic to a tyranny of
raw power. The recent statements and decisions by the Justice Scalia, the BLM
and Governor Fallin undercut this basic principle of American rule of law.
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