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.