McDaniel: The Supreme Court: Lawlessness in the Name of Love

By Senator Chris McDaniel


Five robed Justices of the United States Supreme Court can jolt a nation as surely as anything can. And last week they did just that with two rulings that border on the absurd.

In what are truly troubling decisions, the Court determined that unenumerated federal Obamacare subsidies are, in fact, existent and also constitutional. A majority of the Court then held that gays can get married in any state they choose despite state law.

Where the Constitution expressly speaks to these issues, however, remains a mystery to most.

Interestingly, while conservatives simmer with feelings of betrayal and disgust, the DC establishment appears to be relaxing comfortably. Rest assured, after the Court released its decisions, congressional leaders John Boehner and Mitch McConnell had dodged major obstacles.

Why would this particular decision, which outraged conservatives, encourage them?

Because the Court had just handed them two bailouts.

First, had the Court struck down federal subsidies for the Affordable Care Act, Republicans were poised to pass legislation restoring them, a move that would have demonstrated to conservatives that many in the GOP are more concerned with saving Obamacare than they are with repealing it.

Second, the Court ruled it a fundamental Constitutional right in every state for gay couples to get married, which saved politicians from having to take a position on the issue.

The GOP leadership received just the political cover they needed. It’s now “the law of the land,” they said. Nothing to see here. Nothing left to be done.

Indeed, most establishment insiders breathed a sigh of relief, for the rulings take two controversial issues, as it did with abortion, forever out of the political realm and off their hands.

It should be obvious to every conservative, as well as to any reasonable citizen, that this present Court now considers itself a legislature, if not a deity, capable of deciding what the law should be, who can marry and where, and what subsidies the federal government can provide for a law such as Obamacare, which is itself unconstitutional, but also rewritten and upheld from on high.

Regardless of how one personally feels about Obamacare or gay marriage, the Supreme Court is not a legislature, nor was it ever designed to act as one. Under the Constitution, the federal judiciary only has the power to say what the law is, not what it should be.

It was originally designed to rule on cases brought before it regardless of politics, public opinion, or even a presidential election. Justices are supposed to act in regards to the Constitution only, not their own private thoughts, personal feelings or political whims. And that’s the primary reason they are allowed lifetime appointments.

When the Court begins rewriting legislation to rescue it or voiding state laws without Constitutional permission, however, then we all have to question if we are seeing a ruling class that has successfully grasped the reins of a runaway and uncontrollable government.

Thomas Jefferson, a leading proponent of decentralized power, recognized that any governmental entity permitted to judge the extent of its own authority (as the present Court has done) is one that would forever grow in size and scope.

That is why the federal judiciary was always such a great concern to him.

“You seem,” Jefferson wrote to William Jarvis in 1820, “to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed. . . Our judges are as honest as other men, and not more so. And their power is the more dangerous as they are in office for life and not responsible, as the other [branches] are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with corruptions of time and party, its members would become despots.”

He’s right, of course.

Justice Antonin Scalia put it more succinctly, in one of his dissents, noting that the Court’s “practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.”

These issues should have been decided by the states and the people, not nine unelected justices in DC.

And yet the establishment pretends it’s powerless to curb the Court’s abuses, hoping we won’t notice; because it’s more concerned with personal enrichment, party politics and political games.

With our republic slipping toward chaos, the cause of liberty has taken tremendous damage.

Once we have lost the ability to govern ourselves, we’ve lost the Republic.

Love didn’t win; lawlessness did.

Chris is an attorney, conservative commentator and was a Republican candidate for U.S. Senate in 2014. He has represented the 42nd District, which encompasses part of South Mississippi, since 2008. He resides with his family in Ellisville, Mississippi. Find him on Twitter: @SenatorMcDaniel and on Facebook. 



  1. David Frazier says:

    As an attorney, sometimes one of the most difficult points for me to get across to nonlawyers (and lawyers who are ignorant of basic constitutional law principles) is that there is a distinction between what is proper or legal pursuant to the rule of law, versus what is politically correct or popular. The Equal Protection Clause of the 14th Amendment to the U.S. Constitution is a case in point. It provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” When someone is a member of a protected group, or of a suspect classification which has been historically discriminated against, or if a fundamental constitutional or inalienable right is involved where it is claimed that access to the right (like marriage) is being denied, then the government must demonstrate a “compelling state interest” that the needs of the state outweigh the rights of the individual if the law, regulation, policy, practice, custom, or procedure is going to pass constitutional scrutiny. This is a very high standard, which the government, in only the most extreme cases is able to meet. Even if a fundamental right or a suspect class is not involved, the state’s purpose in promoting denial of equal protection must still be “rational.”

    Therefore, contrary to your assertion, the majority decision in the Obergefell case did not re-write any new laws. Rather, the Court overruled existing laws as being in violation of the protections of the Equal Protection Clause, pursuant to the 200 year American tradition of judicial review. Since marriage is an inalienable, fundamental right, what can be the legal, constitutional basis–the compelling state interest, for denying same-sex couples the same protections under the law for marriage equality as opposite-sex couples? Unfortunately, as everyone knows all too well from history, almost every time the State seeks to deny anyone equal access to fundamental and inalienable rights, the State raises the issue of the Tenth Amendment and a state’s right to defend it’s actions. A quick review of American history reveals that each time a determined state interest and the tyranny of the majority want to deny any persons equal protection under the law, the state defends its offensive conduct under the doctrines of “federalism” and “states’ rights.” Just like Jim Crow in his day, the efforts to deprive same-sex/LGBT equality, are driven by fear and prejudice, based on the fear of the unknown.

    As smart and well-informed as you are, we both know that I am correct in this matter. That leaves me to conclude that by writing this essay, you have decided to lower yourself to the level of the mob, and pander to their fears and ignorance in the same manner as a progressive-socialist-collectivist does. I therefore challenge you to be intellectually honest and admit to your readers that the decision that the majority rendered in the Obergefell case is the only ruling the Court could have made, and still be true to the meaning of equal protection under the law as written in the Constitution.

    • michaelw says:

      Seems like there are different interpretations of what the supremes did as far as whether they were interpreting law or changing and making law which is not their right to do. Imagine, lawyers keeping things gray, nothing is ever black and white with you guys and i believe it is always intentional to do so. That way they can continue to charge 350.00 per hour, ridiculous. So David, I guess it goes to say some lawyers agree with you and some don’t agree with your opinion. After all it is just another lawyers opinion. So where do us middle class non 350.00 an hour types need to send our money so the lawyers can continue to tackle the gray area.

      • David Frazier says:

        Michael, you are correct on this one. Since judges are human like the rest of us, they too have feet of clay and therefore sometimes allow their personal beliefs to interfere with their judicial decisions. The Obergefell case is a case in point. Justices Roberts, Alito, and Scalia are very committed Catholic Christians. Justice Thomas is a very committed Evangelical Christian. If you read their dissents, they are not at all framed in such a way so as to rebut the equal protection under the law points that the majority opinion focuses and based its decision. Rather, not having a constitutional basis to argue, they instead resort to name-calling and sectarian pablum which are wholly inappropriate for any judge to engage, least of all a member of the Supreme Court. Their dissents are prime examples of why I am always very wary when “committed” members of the Christian Collectivist Community attempt to serve in the judiciary. It is extremely difficult for them to be independent in their “judicial” judgment, while at the same time, being “true” to their “sincerely held religious and sectarian beliefs”. Individuals who place their narrow sectarian beliefs ahead of the rule of law should not be on the bench. It’s just that simple.

        On the other hand, you and Chris are absolutely correct in your objection to the majority opinion in the King v. Burwell case. A “textual” reading of the statute clearly demonstrates that the ACA was worded as it is in order to “encourage” states to sign up to run their own exchanges in order for their participating and eligible citizens may qualify for the tax credits. The worst part of it all is that the Supreme Court has committed a blatantly tyrannical act by usurping its authority under the rule of law, for what it rationalizes to be the greater good by torturing the plain wording of the statute, not once, but 7 times in order to achieve an end that the means cannot in good faith justify. As Justice Scalia said in his dissent, the law should be renamed “ScotusCare”. It is also my opinion that as of now, the U.S. Supreme Court is a wounded institution. Not since the Court’s decision in Bush v. Gore has there been a decision where the justices were so determined to guarantee an outcome, regardless of the facts and the law.

      • Bill Smith says:

        David, first, when did Clarence Thomas leave the Roman Catholic Church? Second, your view, and I think you are pretty consistent about it, is that for a person to be an objective justice he must either be a non-believer, or one who does not take his religion seriously, or one who is somehow able to be a belever and put his faith in a locked compartment. To you that is objectivity. But why? Because you are a non-believer who used to be a believer, who feels now you are enlightened, and who believes all need to be enliightened as you are. Any enlightened person will be at worst someone who is skeptical or indifferent enough about his/her faith not to take it seriously. You can be a a dedicated and zealous non-believer and that makes youi objective. But why? All you can claim really is that you are a non-believer and that non-belief informs all your decisions. Third, where did the dissenters argue the beliefs or refer to the beliefs of the Roman Catholic Church? What they argued is 2000 years of history and the definition of marriage and the right of people in the various states, states having regulatory authority over marriage, to decide the marriage laws in each state. They made no attempt to force a particular definition of marriage on the states. That seems to me to judicial restraint, the lack of which you decry in the healthcare law decision, but which you praise in the case of Kennedy who decided he needed to tell people what marriage is and to whom it applies. Fourth, when it comes to morality you appeal to natural law which you take to be the evolving consensus of society about moral issues. In my view such natrual law is no law at all – its the rule of the majority that cn be mustered at any given time. That is not natural law in any classical sense of natural law doctrine. Today’s majority may be tomorrow’s minority and vise versa. The concepts of right adn wrong or good and evil are meaningless on your view. Fith in these poliitical debates and discussions I have not come across a believer, even an evangelical believer, who is more dogged about his faith and who relates it to every matter more consistently than you with regard to your faith in unbelief. You never miss a chance to bear witness to your unbeleif, to assert that everybody ought to believe in unbelief as you do or at worst be indifferent about their fatih, and to repeat your faith that founders intended to establish “a secular democratic republic” even though you know that they did not have in mind at all what you say secular means. Some of them would have told the church to stay out of the government’s business. All of them would have told the state to stay out of the church’s business. But hardly one of them would have told a member of the Constitutional Covnention or the subsequent government to check his faith at the door and pick up (or preferably leave it) as he left.

  2. Bill Smith says:

    I will leave it to you and David to argue the legal matters inasmuch as, while when I took the obligatory vocational testing in college, the psychologist recommended that I become a lawyer, I had to leave it to brother and my son to become robbers of the widows and orphans.

    What bothers me about your edidtorial is the way you lwbel those with whom you disagree wihether about matters of substance of strategy as not conservative while you and those for whom you speak are conservatives. I am sure you well know that histioricallly this is not the case, as iyou would have such disagreements as these with leaders of the conservative movement such a Buckley, Goldwater, and Reagan.

    I surely wish the Court had gone the other way on both decisions last week. But I can understand if Boehner and McConnell were thinking strategy beyond the decisions. That’s why the Party choses leaders in the House and Senate – to think ahead and to lead.

    Had the Court ruled against the subsidies the Republicans would have faced potentially losing issue going into the 2016 campaign, as they would have got the blame for the loss of the subsidies in states that did not set up the exchanges. What would have been the way to go? To leave people required to have insurance but having lost ths subisdies? It is reasonable, if the leadership was thinking about a fix to get though the election season that would have provided the subsidies while preparing a real repeal and replace plan. Next year is probably the last opportunity to replace Obamacare.

    In my judgment the majority of the American peopple, unhappy as they are with Obamacare, do not want simple repeal. They want repeal only if something is put in its place that will address the prroblems with access to healthcare. I will venture to guess that whoever the Republican nominee turns out to be it will not be someomen whose stance is, “Repeal Obamacare. Period,” A candidate will have to have a viable proposal for replacement. That the Repubilicans diid not have a consensus proposal among themselves to deal with the aftermath of the removal of the subsidies means they may have dodged a bulllet and still be able to address the healthcare situation as they approach the ’16 election cycle.

    RE the issue of homosexual marriage, I think we now face the question of whether a culture can survice that has so turned on their heads the meaning and significance of both marriage and family. But the crisis precedes the Court decision by decades, going back at least to the sexual revolution of the 60s. Since then marriage and family have been destablized with heterosexual marriage less and less seen as necesary or even important. In my view that is the bigger problem for the future of our culture. I think once the “point” has been made relatively few homosexuals are going to want marriage. The big questiion is whether freedoms of religion and speech willl be further eroded.

    But, again given where society is on issues of sexuaity, it would be very difficult to fight an electoin with homosexual marriagr as a major issue. So, if the leadership and most of the candidates would rather not have to fight the issue next year, that is understandable, I think. It is hard to envision a winning strategy. We have made progress on the abortion issue (and that is the greater evil) and perhaps in years to come we can make progress on the marriage issue.

    My major point is that I wish you would stop putting yourself on one side as the true conservatives and all the rest of us on the other side as “the establishment” who are not true conservatives. It’s destructive. But most important it simply is not true.

  3. David Frazier says:

    Bill, it’s not a question of belief or unbelief. Rather, it’s a matter of putting one’s sectarian beliefs ahead of the rule of law, as Jefferson, Madison, Franklin, Young, Adams, Paine, et al. were keenly aware. As you yourself attest by your own considerable arguments, it is extremely difficult for someone who is a dedicated/committed Christian to place the rule of law above your sectarian beliefs–and that’s okay since you’re not making decisions that affect/bind the rest of us. However, since judges do make decisions which affect/bind others, they don’t have that luxury. Their decisions should always be restricted to an application of the secular rule of law. To be sure, there may be times when their secular decisions are influenced by certain Christian principles. But as I have articulated many times, my simple wish is that Christians “be Christian”, and seek first the Kingdom of God and His righteousness; and that they leave matters involving Caesar and the operation of the State to the rest of us. Contrary to the desire of some, America is not a Christian Commonwealth, and the courts and the other government leadership positions are not our Lord Protectors.

    Look at the chaos in the national Republican Party at this time. All of the major candidates at this time, with the possible exception of Donald Trump, are allowing their personal, narrow, theistic beliefs to dominate every aspect of their campaign rhetoric. This is music to the ears of the Democrats, because they recognize that the vast majority of Americans do not share the candidates’ narrow sectarian beliefs, and that these beliefs have no place dominating the public political debate. Accordingly, unless someone breaks free from the rhetoric and is willing to possibly alienate the Christian Collectivist Community which continues to be the tail that wags the GOP dog, the Democrats will once again be triumphant in their quest for the White House in 2016, and the Republican Party will no longer be able to be viewed as a viable national political party. The GOP could even split where the Realists finally say “Enough!” and force the Christian Collectivist Community faction to either conform, or to get out. The Democrats know that the key to winning is to focus on those issues that are connected to the economy. Unfortunately, the Republican candidates continue to allow themselves to be distracted by CCC PACs, which push them to focus on social issues that detract from the many great ideas on economic growth and development.

  4. David Frazier says:

    I for one would like to hear from John Hey Pittman on this topic. If anyone knows how to contact him, please tell him that we need his pithy insight on the matter.

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