Judd Gregg: A government in free fall


The essence of our form of government is the rule of law.

This is the legacy of our English political roots. Those laws, unlike some nations’, are not arbitrarily arrived at, but arise from the actions of an elected government.

When the rule of law is threatened or marginalized, then the entire concept of our republican form of representative government is put at risk.

{mosads}We have seen in the last week massive protests that have been energized by the inexcusable act of a thug masquerading as a police officer. His acts catalyzed people who feel they have been at risk from those whose responsibility it is to protect them.

Some of these protests, like the acts of the policeman they are protesting, have turned violent. A small cadre has used the demonstrations as an opportunity to loot, burn, destroy property and harm innocent bystanders. This is a breakdown in civil order.

It may come as a surprise to the liberals who sip their lattes in Harvard Square or the editorial salons of The New York Times, but if you do not have the rule of law you cannot have social justice.

Although President Trump has proclaimed himself to be the “president of law and order,” in fact he has shown himself in the last week to be incapable of understanding the language of leadership — language that, if it were rightly used, would give people confidence that he could be a fair arbiter of what the rule of law should mean.

He says he will call out the “vicious dogs.” He says when “the looting starts, the shooting starts.” He proclaims his right to overrule the governors of the states and use the military to quell the violence — a questionable power, at best, under the law.

He generally seems intent on stirring hatred rather then working to address the underlying problems. He appears to believe that this is a political opportunity rather than a national concern.

No one really expected much more from the president. His strident bombast has simply confirmed that he has marginalized his office.

More important are actions of leaders who should know better.

Unfortunately a few months ago, well before the incident in Minneapolis, Senate Minority Leader Charles Schumer (D-N.Y.) took to a street podium and, in effect, proclaimed that the rule of law was a relative term to be interpreted for political gain.

The minority leader of the Senate stood on the steps of the Supreme Court — a building designed to be an imposing statement of the strength of the rule of law in America — and threatened two members of the Supreme Court.

Referring to cases involving abortion, and to the views of two conservative justices, Neil Gorsuch and Brett Kavanaugh, Schumer said: “You have released the whirlwind, and you will pay the price. You won’t know what hit you if you go forward with these awful decisions.”

The Senate minority leader is one of the most powerful and influential figures in our constitutional structure.

He is, by definition, the leader of the opposition in the only branch of our checks-and-balances style of government that gives the minority a significant and effective voice.

The minority in the Senate — because of the rules of the Senate — has the ability to directly impact how the nation is governed.

Never in recent memory, if ever, has such a powerful figure as the Senate minority leader threatened members of the Supreme Court using intimidatory language.

Schumer’s actions and words had a distinct tinge of what one would expect to hear in Venezuela or Cuba, where the powerful control the law, rather than in America, where the law controls the powerful.

A citizen asked Benjamin Franklin upon the closing of the Constitutional Convention in Philadelphia what form of government had been produced. He famously responded: “A republic, if you can keep it.”

Over the years, our constitution has been often tested as it is today — but it has stood as the most extraordinary form of free government ever undertaken by any people.

It will of course continue to stand.

But so much is occurring today that is inexplicable in terms of the history of our constitutional structure. We may be headed toward an unfortunate and potentially depilating reordering of our form of national government.

If a person who holds the office of Senate minority leader feels no hesitation or compunction about attacking the Supreme Court, it raises the issue of whether our federal government is in structural distress.

{mossecondads}The House of Representatives has spent two years trying to find an extra-electoral way to terminate a duly elected president.

The fact that they have not succeeded is, in some ways, beside the point. The Democratic majority continue to try to negate a national election because they disagree with the outcome.

The president has spent most of his political capital and time on a psychotic chase to destroy all who disagree with him, both within and without his administration.

He does not seem to believe that the precedent set by presidents who have come before him — or indeed the Constitution itself — should limit his excesses against those he deems unbelievers.

Most concerning is Schumer’s language. He is not Donald Trump. He is supposed to act responsibly and not embolden those who would flaunt the rule of law.

His was a statement that could only be made because his audience does not understand or care about the ideas that are at the core of our constitutional structure.

The rule of law has the Constitution as its most precious source.

The Supreme Court is given the ultimate responsibility of determining what those rules are.

We have three branches of the federal government so none will take unto itself the rule of law, but will rather have to respect and consider the actions of the others.

Congress may draft the laws, but the president must approve them and the Supreme Court can determine if they meet the test of maintaining the individual liberties granted under the Constitution.

It is fairly evident that in today’s political climate, Congress is not working well.

This is in part because of divided government, but it is also because the institution of Congress is undergoing fundamental change.

Members of Congress are scared to their political death of crossing the vocal, powerful bases of their parties.

The leadership of the nation has been turned over to the shouting and vituperative voices who dominate social media and the talking heads of partisan TV.

This is government by populism, but on steroids. And populism is by definition antithetical to orderly governance.

We are actually moving away from being a republic, where the people elect representatives to govern for them, toward a pure democracy where crowd mentality governs.

The elected become the followers of the movement of the day.

The reason Schumer spoke in such a manner as to threaten individuals of the Supreme Court was that he was following those marching in the street.

He was turning governance over to a chanting crowd with which he wished to ingratiate himself.

He was no longer their elected leader sent to govern on their behalf; he was their elected follower being governed by them.

It is difficult, if not impossible, for a government such as ours to function if it is going to look to mass movements to be the source of how we are governed.

Pure democracy inevitably leads to minority and individual rights being trampled. Government becomes the force of the popular mood of the moment.

Franklin did not say we had a democracy. He said we had a republic. He was a person who understood his words.

For our constitutional system to work, for the rule of law to govern, we must have elected representatives who understand that their role is to govern, not to be governed by the intensity of the sentiment of the day.

The nation is wrestling with the trauma of this pandemic, but we will overcome it. It will recede into the background of our experience as a people.

The nation is also wrestling with the causes of the legitimate protest arising out of the policeman’s actions in Minneapolis and the death he caused.

This struggle has deep roots.

Martin Luther King set the course correctly with his nonviolent standard. It is that standard that most of those who protested George Floyd’s death should follow, and have been following.

It is critical if we are to succeed as a nation in such trying times that our leaders understand and respect the concepts at the core of our constitutional system.

The rule of law is at the center of our society’s success. People who claim the mantle of leadership should not cast it aside for the sake of popular adulation.

The president who does not seem to be overly concerned with the Constitution may not know better, but Sen. Schumer should.

Judd Gregg (R) is a former governor and three-term senator from New Hampshire who served as chairman and ranking member of the Senate Budget Committee, and as ranking member of the Senate Appropriations Foreign Operations subcommittee.

Tags Brett Kavanaugh Charles Schumer Constitution Constitutional law Donald Trump Judges Judiciary Neil Gorsuch partisanship Polarization

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