Of all the things we conservatives are known for, I can at least have pride that our intellectual tradition is associated with the rule of law, by which I mean the belief that a state should be governed by law and not the caprice of government officials, no matter how benign or wise. As sectarian violence is making large swathes of the Middle East ungovernable and political corruption around the world has turned law in some countries notional at best, we clearly see the detritus that unchecked human activity leads to. In other words, the rule of law is important, perhaps more so now than ever.
That is why I watched the unfolding debate around Kim Davis—the county clerk in Kentucky who, claiming a religious objection, refused to issue marriage licenses to gay couples—with great interest. Citing her refusal to enforce the law, a federal judge ordered her to jail (she has since been released). A great debate emerged. Some on the right, like presidential candidates Governor Mike Huckabee and Senator Ted Cruz JD ’95, argued that this was a first amendment religious liberty debate, and that Davis should have never been imprisoned. However, perhaps surprisingly, others on the right made common cause with those on the left by arguing that the question was simply a matter of the rule of law: as a government employee, Davis had no choice but to comply with the state’s marriage policy. However unfortunate it might be that her job forced her to violate her conscience, her choices were either to enforce the law or resign.
Running the risk of ignoring some nuances, I think this argument makes sense, and should appeal to many conservatives. Kim Davis qua a government employee should have obeyed the law. Instead of arguing that Davis did nothing wrong, we conservatives should focus our energy on articulating why forcing people to make the choice between their job and their religious beliefs is profoundly un-American. Such a choice is as tragic as it is avoidable. States should follow North Carolina’s example and create protections for employees claiming religious exemptions, and Congress should pass Utah Senator Mike Lee’s First Amendment Defense Act.
But this column is not about religious freedom, nor is it (mainly) about Kim Davis. It is about the rule of law and how many on the left have used it inconsistently in their arguments against conservatives. Over the past few years, President Obama and some of his allies have done things remarkably similar to Davis: where she forsook the rule of law for faith, they did so for ideology. And while one might be able to convincingly argue that, in virtue of some reason other than the rule of law, their actions were justified whereas Davis’ were not, the burden to provide that argument rests on their shoulders.
A few examples:
Immigration. Congress notably failed to pass comprehensive immigration reform in 2013. Before that they refused to pass the Obama-backed DREAM Act. In response to these legislative setbacks, Obama decided to act unilaterally. On June 15, 2012 Obama announced that the United States would no longer deport illegal aliens who matched the criteria outlined in the DREAM Act, effectively enacting the law that Congress rejected.
And on November 20, 2014 Obama announced that he would defer the deportations of millions of illegal aliens. The action was almost immediately challenged by Texas, with twenty-five other states eventually signing on to the lawsuit. Federal District Judge Andrew Hanen not only placed an injunction on the deferments, but also ordered Homeland Security Secretary Jeh Johnson and other federal government officials to appear before him and explain why they seemingly failed to comply with his injunction. Hanen went so far as to characterize the government’s attitude towards it as “cavalier”.
While the president’s DREAM executive order may not be technically illegal, prosecutorial discretion and the current appeal to Judge Hanen’s injunction taken together are actions typifying a pattern of disregard for the rule of law. Their clear intent and effect were to undermine the duly passed and standing laws of Congress and supplant existing immigration policy with Obama’s. To rewrite America’s immigration laws by executive fiat is to turn congressional approval into a sufficient, rather than a necessary, condition for lawmaking, and concomitantly to weaken the rule of law.
Marijuana. Here in Massachusetts, medical marijuana is legal and non-medical marijuana is decriminalized. This is more or less the case in twenty-three other states; in four (and the District of Columbia) recreational marijuana is legal, and in twenty medical marijuana is legal.
While one can debate the merits of these policies—whether the current laws disadvantage minorities, whether taxing marijuana could bring in substantial revenue, whether the drug is dangerous or not—they are in violation of federal law, which has not changed to accommodate those more permissive states. Indeed, the Drug Enforcement Administration lists marijuana as a Schedule I drug, and still has the power to arrest those who buy, sell, or consume it. The 24 states and the District of Columbia, by refusing to comply with federal law, undermine the rule of law just as much as Kim Davis did.
With more space, I could go into more examples. I could write about the mayor of Baltimore who said, “we also gave those who wished to destroy space to do that,” and list all the reasons why state-sanctioned destruction of private property frustrates the rule of law. Or about sanctuary cities, localities whose officials refuse to work with federal immigration agents. Or how the Supreme Court struck down three of Obama’s appointments to the National Labor Relations Board. Or how the Obama administration in 2011 announced it would not defend the Defense of Marriage Act. But I hope the short examples I provided help to show that those on the Left sometimes relegate the rule of law too.
If one is going to criticize Kim Davis primarily on the grounds that she undermined the rule of law—like White House Press Secretary Josh Earnest did—one also needs to criticize Obama’s unilateral decisions to revise immigration policy, the federal government’s tolerance of heterodox state marijuana laws, and a host of other actions. This is not to say that all these things are equally condemnable; one can bring in considerations other than the rule of law to argue that what Davis did was better or worse than any of the examples listed above. However, it is for those who have selectively criticized Davis to make those arguments.
Isaac G. Inkeles ’16 is a government concentrator in Leverett House. His column appears on alternate Mondays.