Government, of the people

Of course some consideration was given to the questions of power and propriety before this matter was acted upon. The whole of the laws, which were required to be faithfully executed, were being resisted and failing of execution in nearly one-third of the States.  Must they be allowed to finally fail of execution, even had it been perfectly clear that by the use of the means necessary to their execution some single law, made in such extreme tenderness of the citizen’s liberty that practically it relieves more of the guilty than of the innocent, should to a very limited extent be violated?  To state the question more directly, are all the laws but one to go unexecuted and the Government itself go to pieces lest that one be violated? 

—Abraham Lincoln, 4 July 1861

This was the language used by the President to suspend Habeas Corpus during the civil war.  Habeas Corpus is Latin for “You have the body.”  It is a term that represents an important right granted to individuals in the United States; a mandate requiring that a prisoner be brought before the court to determine whether the government has the right to continue detaining them.  Constitutionally, the right of Habeas Corpus can be suspended when, “in cases of rebellion or invasion the public safety may require it.”

The question is not so much whether Habeas Corpus may be suspended in the United States, but rather, who may suspend it.  In Lincoln’s time, he believed that he had the right to suspend this constitutional right, but in 1866 the Supreme Court ruled that only Congress might suspend it (See note 1).

Artist: Lucy Deane

As to the faithfulness of the law, are citizens obliged to obey an abusive law?  If we require citizens to obey the laws handed down by Congress or Executive fiat, does the government incur that same obligation with respect to the United States Constitution and the Bill of Rights?  Andrew McCarthy recently opined that the legitimacy of law and our commitment to uphold the law must hinge on our sense of whether the law and its execution are just.  We may wish to protect an endangered species, but is doing so justified over our greater mandate to preserve our inalienable right to life, liberty, and the pursuit of happiness?

If we examine the laws enforced by the Bureau of Land Management, particularly in the case of Cliven Bundy, where it appears that BLM’s concern for the desert tortoise is no more than pre-textual, we seem to have a confrontation between Washington ideologues and a disfavored class of citizen: Nevada ranchers.

Personally, I think Mr. Bundy has handled this problem poorly; he does not appear to be the sharpest tack in the drawer —but neither do I think the federal government has the right to abuse citizens with reams of laws and procedures.  Being at loggerheads with the federal government is nothing new in this country, but I believe we are reaching a dangerous point where, either we find a way to reduce these contentions, or we must face the real possibility of civil conflict, yet again. 

It would be helpful if we had, within the body of congress, good and faithful servants of the people who earnestly believe that he who governs least, governs best.  It would be a bonus to have sitting judges who understand the fragility of the Constitution and Bill of Rights, and acted accordingly —pursuant to their oaths of office, to preserve and protect these founding documents.  And it would be fantastic if we have bureaucrats who were committed to balancing environmental issues with the right of the people to use our resources to earn a living. 

Personally, I don’t think we can achieve any of this until we first have a body of citizens who understand more than how to log on to social media.

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Notes:

1.  One problem with our system of supervisory courts —they always seem to rule AFTER the government has taken away that which cannot be restored.  Perhaps we should consider the case of Eugene Debs, who was selectively prosecuted and imprisoned with the full concurrence of the high court, for exercising his right to an opinion, and the audacity to express it.