In the 2016 presidential race, there are 17 declared candidates for the GOP nomination and six for the Democrat nomination. How do evangelicals and social conservatives begin the sorting process to decide who is worthy of their vote?
The place to begin is with the candidates’ position on the incarceration of Rowan County clerk Kim Davis. Her incarceration, I would suggest, is THE defining moment of the presidential campaign, particularly on the GOP side.
The question for each candidate is simple: do you support Kim Davis or do you condemn her?
Candidates who support Kim Davis understand the importance of religious liberty, freedom of conscience, the First Amendment, and the limitations the Constitution places on the tyrannical overreach of the federal judiciary.
Candidates who think Kim Davis belongs in jail or should lose her job do not understand any of those things.
Candidates, in talking about Mrs. Davis, have divided themselves along one simple fault line: is a Supreme Court ruling “the law or the land” or is it not?
Worthy candidates understand the reality that the Supreme Court in fact cannot possibly make law. The power to make law under the Constitution is reserved exclusively, without exception, to Congress. “All legislative Powers,” it says, “shall be vested in…Congress.”
In simplest possible terms, this means if Congress didn’t do it, it’s not a law.
Congress has never passed a law imposing sodomy-based marriage on the United States. In fact, the relevant law that Congress has passed, the Defense of Marriage Act, explicitly protects Kentucky’s right to define marriage for itself with no interference from the federal government, including the judiciary. Kentucky, with the support of 75% of its citizens, has protected man-woman marriage in its state constitution. Under the rule of law, that rightfully should be the end of the matter.
So while a Supreme Court ruling may have the effect of law, due to the meek, abject acquiescence of a compliant and constitutionally uneducated public, the Supreme Court is explicitly forbidden from making law.
The Supreme Court is the supreme court, not the supreme branch of government. As Thomas Jefferson pointed out, the three branches of government are co-equal. No one is superior to the other. As he put it, “The branches are co-equal and co-sovereign within themselves.”
In Jefferson’s view, each branch has the authority to decide for itself, in its own sphere of action, what is constitutional and what is not. To believe that the Supreme Court is the supreme branch of government would be to “place us under the despotism of an oligarchy.”
If one branch is superior to the others, then there are no meaningful checks and balances in our system of government. We may pay lip service to the concept, but if the moment the Supreme Court speaks the debate is over, then there is no restraint, none, on the dictatorial power it will arrogate to itself. The picture of Kim Davis in shackles is living proof.
As Abraham Lincoln pointed out, in responding to the egregious Dred Scott ruling, if we accept the conceit that the moment the Supreme Court rules, policy is “irrevocably fixed,” then the people “will have ceased to be their own rulers.”
Constitutionally, the solution to a bad law is not the Supreme Court. The solution is a better law. If Congress passes an unconstitutional law, the corrective, under the Framer’s Constitution, is for people to demand that lawmakers correct it. The people can read the Constitution just like everybody else can. We don’t need the Supreme Court to tell us what it means.
The American people assume, without any constitutional warrant, that the Supreme Court is the final arbiter on all constitutional questions. But the Founders’ Constitution nowhere grants that kind of authority to the Court. In fact, the only jurisdiction the Constitution gives to the federal judiciary in Article III is in “Controversies between two or more States” or “between Citizens of different States.” Otherwise, matters within a state (for example, in Rowan County, Kentucky) are matters for the Kentucky state legislature and the Kentucky court system to decide.
America desperately needs our next president to be a person who understands the paramount importance of religious liberty and will use executive influence and power to protect it. America needs a president who understands the Constitution and the limitations it places on the overreach of the judiciary.
Religious liberty was so fundamental in the minds of the Framers that it is the very first of the inalienable rights the Founders protected in the Bill of Rights. Kim Davis’ right to the free exercise of her religion was squashed by a federal judge who locked her up instead of seeking a reasonable accommodation for her exercise of conscience. At this time in our history, we must have a president who understands the paramount importance of religious liberty and will defend it zealously and without apology or retreat.
If a presidential candidate will not vow to protect this first and preeminent constitutional right, how can we reasonably expect him to protect any of the others?
Bottom line: presidential candidates who stand with Kim Davis deserve further consideration. Candidates who won’t stand with Kim Davis do not.