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May 7, 2013

Obama’s and Holder’s Selective Constitutional Deafness

Often a phenomenon of bad marriages, “selective deafness” is when one hears only what is convenient. The same failing manifests itself in government when politicians and judges hear the Constitution talk only when it sings their tune. Worse still, sometimes these people behave as if the document says things it doesn’t. This is the equivalent of hearing things.

And Kansas governor Sam Brownback heard something recently. He received a letter from Attorney General Eric Holder stating that Kansas’ newly enacted legislation prohibiting government agents from enforcing federal gun laws in the state “directly conflicts with federal law and is therefore unconstitutional.” Unconstitutional, Eric? My, how antebellum of you.

Meanwhile, the South Carolina House just passed a law criminalizing the enforcement of ObamaCare within its state, a move that critics will also attack with talk of the Supremacy Clause.

Speaking of supremacy, AG Holder also told Brownback that the feds would litigate if necessary “to prevent the State of Kansas from interfering with the activities of federal officials enforcing federal law,” which means that the case would end up before the Supreme Court.

So now the administration that created ObamaCare, refuses to enforce immigration law, illegally bypassed the Senate to make recess appointments, and has a DOJ that won’t offer whites voting-rights protections cites constitutionalism in defense of its agenda. This is a bit like serial-killing abortionist Kermit Gosnell seeking to avoid the death penalty by preaching the sanctity of life.

For Brownback’s part, he defended Kansas’ law by pointing out that the right to bear arms is enshrined not only in the US Constitution but also the Kansas Bill of Rights. This is true, but as Cicero learned 2000 years ago and hate-speech apparatchiks insist today, the truth isn’t always a defense. And the truth is, Toto, we’re not in Kansas anymore. We now live in a place where the rule of law has been supplanted by the rule of lawyers.

G.K. Chesterton once noted that “[t]here are only two ways of governing: by a rule and by a ruler.” We should note that in our nation it increasingly is the latter and that the pretense of constitutionality is now often used as a pretext for unconstitutional designs. The contemporary left’s attitude is much like that of the Jim Carrey lawyer character in Liar Liar who, subject to a spell that precluded his lying for 24 hours, responded to a judge’s question about why he objected to an argument in court by saying “Because it’s devastating to my case!” While the left is never that honest, their definition of a proper legal argument is similar: whatever works for them at the moment. Unfortunately, they have also managed to appoint many judges who work for them.

Thus, when leftists such as Eric Holder say, “We’ll see you in court,” our response should be, “I’ll see your court and raise you a state executive branch.” After all, how else do you respond when dealing with a stacked-deck Supreme Court that, using the greasiest of lawyer-craft, rubber stamps blatantly unconstitutional ObamaCare? How can the High Court be ascribed deific infallibility when it reads the same document in different times and draws different conclusions?

First remember here that the Supreme Court is only meant to be supreme among courts. And what of judicial review, the principle that courts shall be the ultimate arbiter of the Constitution’s meaning for all branches of government?

It is found nowhere in the Constitution.

It originated with the 1803 Marbury v. Madison decision in which Chief Justice John Marshall declared the right for the Court.

In other words, the Supreme Court was given big-kahuna powers by…the Supreme Court. So George Washington refuses to be made king, and shortly afterwards, like Napoleon crowning himself emperor, the Court makes itself an oligarchy. And we abide by this…why?

If thus characterizing the Court smacks of typical modern hyperbole, note that Thomas Jefferson warned that an oligarchy is precisely what the institution would become if judicial review were accepted. He said about the branches of government that it wasn’t correct to give “one of them alone, the right to prescribe rules for the government of the others…” and that if Justice Marshall’s opinion held sway, “then indeed is our constitution a complete felo de se” – this means a suicide pact.

Yet there is an even larger point. I am a staunch constitutionalist, but this is much like saying you’re an avid boxer: you can only indulge your passion with the cooperation of others. If your opponents refuse to abide by Queensbury rules, “boxing” becomes impossible as you’re reduced to a no-holds-barred, outlaw fight. And then insistence on unilaterally abiding by the rules only ensures painful defeat. Likewise, what happens when you play by constitutional rules despite your opponents’ subscribing to no-holds-barred, outlaw governance?

The point is that our constitution is the contract the American people have with one another. But when a party subject to a contract repeatedly violates its terms for the purposes of benefitting itself and disadvantaging the other parties, that contract is rendered null and void. For it has then become a suicide pact – especially for those who insist on fighting fair with barbarians.

This can be illuminated further by expanding on the boxing analogy, with the rules of boxing being the Constitution, your opponent representing the feds’ interests, boxing’s ruling body being the legislature, and the ringside judges being the Court. While the ruling body makes the rules, the judges’ role is to simply apply them, and your opponent has an obligation to follow them. But what if your opponent consistently violates them to gain an advantage? What happens when the judges, operating with an idea that the rules are “living,” only apply them in a way that suits whatever rooting interest they have at the time? Furthermore, what if your opponent has a majority of the judges in his pocket and they will ensure his victory? You’d have to be punchy to even step into that ring.

A prerequisite for any civilized endeavor – be it a game or government – is the necessary degree of civility on the part of those involved. Barring this, the wise move is to walk away and, in no uncertain terms, serve notice that you won’t play until there is agreement to follow the rules. And if your opponents are so intent on domination that they follow you outside the ring to fight, then you know it’s a back-alley brawl and proceed accordingly. Remember that when people will yield to neither reason nor law, there is only one thing left that can make them yield.

What we often forget when preaching constitutionalism is that the principle is conditional. As our second president John Adams explained, “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” “Moral and religious” describe neither the leftists controlling our federal government nor those voting them into power. So love it though we may, our constitution is no more suited to much of modern America than it is to the Taliban. The sooner we accept this, the sooner we’ll free ourselves from the shackles of the left’s selective law just as it long ago freed itself from the guide rails of all law.

You can contact Selwyn Duke at [email protected]. Follow him on Twitter: or log on to

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