An Oath of Office

The oath of office for a judge in the State of Alabama goes something like this:

I solemnly swear (or affirm as the case may be) that I will support the Constitution of the United States, and the Constitution of the State of Alabama, so long as I continue a citizen hereof; and that I will faithfully and honestly discharge the duties of the office upon which I am about to enter, to the best of my ability. So help me God.

Of important note in the oath of office is the object of the support…the various constitutions.  Remarkably absent from the oath are the words, “the other justices above me”, or “the justices of the United States Supreme Court”.  Ah, you say, but the United States Constitution requires that.  Right?  Wrong.  Read Article III again.  It isn’t in there.  You can find a semblance of it in Marbury vs. Madison, but the last time I checked, case law wasn’t a constitution…even when it is as old as Marbury.  Even Article VI of the U.S. Constitution requires that any laws that the federal government were to pass must be “in pursuance” of the Constitution.  Thus, that is our law. Everything else…laws, opinions, and the like, MUST be in conformity with the constitution in order to be lawful.  That’s why our officers in the military have a DUTY to disobey an unconstitutional order.

So, why do so many insist that judges and other elected officials have to fall in line and just do what they are told from the top down? In part, some of that comes from a judicial theory known as stare decisis, or “let the decision stand”.  That’s the judicial theory that espouses that as a judge, you shouldn’t rule in a manner contrary to the ruling of the superior courts.  But people often leave out the reason “why”. The “reason” that judicial doctrine exists is not because a constitution mandates it, or a law mandates it, but because things, in general, get pretty chaotic when every judge does what is right in his own eyes. If you go to court, it can be helpful to know that in all likelihood, other wise, prudent judges have already heard things that are very similar to your scenario, and thus, in general, you should have a good idea of how things should go with your day in court.

But, what has happened to our courts today is that we’ve turned a legal principle into a rigid law. Many, if not most, judges are unwilling to “judge”, and instead choose to rely upon previous cases to make their decision. Ironically, it is only the more liberal judges in America today who have figured out that they don’t have to rule on stare decisis. Other lesser magistrates such as the elected officials in San Francisco have done similar things in regards to allowing “sanctuary cities”.  That’s why you can have judges throw out hundreds of years of law because they reason a different way.  When stare decisis becomes law, we then see that, “Law, primarily a rule of reason, becomes a rule of precedent.” -W. F. Kuzenski, Stare Decisis, 6 Marq. L. Rev. 65, 69 (1922).  The only ones currently receiving so much attention in the media today are the magistrates who uphold the constitution in a manner that differs from the liberal agenda.

I’m not advocating that we eliminate all forms of stare decisis. Instead, I’m advocating we apply it truly as a legal principle and give it the proper recognition it deserves…well below constitutions, oaths, and law. Judges and executive branch officials can look to what various judges have decided and use those “opinions” to help shape their actions. If an official is not obeying the constitution, there are grounds and procedures for the removal of that official. But, not obeying stare decisis is not a ground for removal from office. Disobeying the constitution is. Thus, when an elected clerk in Kentucky or an elected Supreme Court justice in Alabama rules or acts contrary to what some judge (or justices) decides, we have to remember that they haven’t violated any law. In fact, they are the only ones who are actually obeying the law and acting with integrity, by maintaining their oath of office and supporting the constitution that they swore to uphold.

Blind obedience to the will of any particular judge, 5 justices, or a superior officer is not a system of “Rule of Law”.  It is a system of tyranny.

Precedent

A poem, by Sam Walter Foss.Calf Path

One day, through the primeval wood,
A calf walked home, as good calves should;

But made a trail all bent askew,
A crooked trail as all calves do.

Since then three hundred years have fled,
And, I infer, the calf is dead.

But still he left behind his trail,
And thereby hangs my moral tale.

The trail was taken up next day,
By a lone dog that passed that way.

And then a wise bell-wether sheep,
Pursued the trail o’er vale and steep;

And drew the flock behind him too,
As good bell-wethers always do.

And from that day, o’er hill and glade.
Through those old woods a path was made.

And many men wound in and out,
And dodged, and turned, and bent about;

And uttered words of righteous wrath,
Because ’twas such a crooked path.

But still they followed – do not laugh –
The first migrations of that calf.

And through this winding wood-way stalked,
Because he wobbled when he walked.

This forest path became a lane,
that bent, and turned, and turned again.

This crooked lane became a road,
Where many a poor horse with his load,

Toiled on beneath the burning sun,
And traveled some three miles in one.

And thus a century and a half,
They trod the footsteps of that calf.

The years passed on in swiftness fleet,
The road became a village street;

And this, before men were aware,
A city’s crowded thoroughfare;

And soon the central street was this,
Of a renowned metropolis;

And men two centuries and a half,
Trod in the footsteps of that calf.

Each day a hundred thousand rout,
Followed the zigzag calf about;

And o’er his crooked journey went,
The traffic of a continent.

A Hundred thousand men were led,
By one calf near three centuries dead.

They followed still his crooked way,
And lost one hundred years a day;

For thus such reverence is lent,
To well established precedent.

A moral lesson this might teach,
Were I ordained and called to preach;

For men are prone to go it blind,
Along the calf-paths of the mind;

And work away from sun to sun,
To do what other men have done.calfpath2

They follow in the beaten track,
And out and in, and forth and back,

And still their devious course pursue,
To keep the path that others do.

They keep the path a sacred grove,
Along which all their lives they move.

But how the wise old wood gods laugh,
Who saw the first primeval calf!

Ah! many things this tale might teach –
But I am not ordained to preach.