The Rise of Lawlessness

“ . . .beware lest you be carried away with the error of lawless men and lose your own stability” (2 Peter 3:17 ).

As the year 2003 began and political pressure was mounting to address the lawless regime in Iraq through the procedural machinery of the UN, there was one great, nagging question that hung like an annoying cloud of pestilence over it all: Do the nations of the world possess the honesty and the courage to deal decisively with a lawless regime in the Middle East—a regime that has flouted UN authority for more than a decade, ignored one UN resolution after another, murdered its own people, attacked its neighbors, and thumbed its nose at sanctions imposed by the UN to limit the production of weapons of mass destruction?

Honest historians could have told us then what we would shortly re-discover: Few nations—or leaders of nations—in the history of the world have had the courage to confront evil and deal decisively with it. And so, the United States , Great Britain , and a few dozen other nations threw down the gauntlet in the face of enormous opposition from the rest of the world and went to war against the bloody regime of Saddam Hussein. Saddam was deposed rather quickly, but nine months later we are still engaged in a costly struggle against lawlessness in the Middle East ; even with the recent capture of Saddam, found cowering and demoralized in a miserable hole in the ground, terrorist organizations continue to wage their suicidal attacks because they know they cannot afford to lose this fight. It is a decisive moment in history for both sides.

The Confounding Irony

Unfortunately, the lawlessness we must confront is not confined to the battlefields of Iraq . We have come to a decisive moment here on our own soil, and it has the potential to destroy us as a free nation if left unchallenged. Having boldly confronted a lawless regime thousands of miles from our shores, it seems we are mocked here at home by a spirit of lawlessness that has taken root in the institution of government that was designed to be a guardian of law and defender of our Constitution—the Supreme Court.

We have come to the point in this country where we are being ruled (in the words of Thomas Sowell) by “dictators in black robes.”

Sowell wrote recently, “Lawlessness usually conjures up images of a wild frontier or mobs in the streets. But the painful reality is that the supreme examples of lawlessness in our times are in the august and sedate chambers of the Supreme Court of the United States ” (“Courts Without Law,” Dec. 16, 2003 ).

December 10, 2003 , was a sad day for freedom of speech in America . Five arrogant dictators—who sit in the protected enclave of a life appointment to the most powerful court in the world—repudiated in one fell swoop the American citizen's right to free speech under the First Amendment. By a vote of 5-4, the Court ruled that the campaign finance reform law (“McCain-Feingold” bill) signed by President Bush in the spring of 2002 was constitutional.

It has been reported that the President had reservations about the bill, but signed it because he believed (like many Americans) that the Supreme Court would never let stand a law that would allow Congress to limit political speech. But the unthinkable has happened.

The provision in the so-called campaign finance reform legislation that is patently totalitarian in concept says that it shall be illegal for television or radio stations to air issue ads paid for by any individual or group 30 days before a congressional primary election or 60 days prior to a federal general election. To put it bluntly, criticizing your congressman can now be illegal.

The point of the odious decision on December 10 is not whether campaign finance reform is a good idea or a bad idea. The point is that the Supreme Court's ruling in that case has no foundation in law—it was a lawless decision. There is not a single word in the U.S. Constitution that authorizes Congress to regulate what is said by whom, or under what circumstances, in a political campaign. The Constitution states clearly, “Congress shall make no law abridging the freedom of speech.”

Justice Antonin Scalia pointed out that the Court's decision “cuts to the heart of what the First Amendment is meant to protect: the right to criticize the government.”

Justice Clarence Thomas warned, “The chilling endpoint of the Court's reasoning is not difficult to see: outright regulation of the press.”

Logically, we have to ask: If McCain-Feingold can prohibit political speech at 60 days before an election, couldn't the same political speech be prohibited at 90 days before an election—or 120 days? And, couldn't speech that is prohibited on radio or television be prohibited also in the press or on the Internet?

In this age of creeping lawlessness, it's not hard to see why the unthinkable has finally happened. The political left has adopted the strategy of aggressive judicial activism because it recognizes it can never achieve its radical agenda through elected officials. The left depends on the courts to impose by judicial fiat what they could never accomplish at the ballot box. Thus, we have the bitter fight in Congress, with an obstructionist, lawless cadre of partisan players on the left denying to judicial nominees of excellent qualifications their right under the Constitution to be voted on by the full Senate. It is lawlessness at the very heart of Congress—the body designed under our form of government to make — not thwart —the law!

Walter Williams observed on December 17 (“Getting back our liberties,” TownHall.com ) that people might argue that it's the U.S. Supreme Court that decides what is constitutional or not. He offers a quotation from Thomas Jefferson on the questionable wisdom of allowing the Court to hold a monopoly on the interpretation of the Constitution:

“... the opinion which gives to the judges the right to decide what laws are constitutional and what are not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.”

Williams points out, “The history of the Court, not to mention last week's decision on the constitutionality of the McCain-Feingold campaign finance reform that attacks free speech, is proof that Jefferson was right and Alexander Hamilton wrong in his Federalist Paper No. 78 prediction that the judiciary would be the ‘least dangerous' branch of government.”

Amen to that.

What Can We Do?

Mark Tapscott, Director of the Center for Media and Public Policy at The Heritage Foundation, has some suggestions. He says, “Because it so compromises a fundamental constitutional right of every American, McCain-Feingold must be resisted at every turn. There will come a time when this decision will be viewed among such infamous decisions as the Dred Scott Case that upheld slavery in 1857 and Plessy v. Ferguson that approved “separate-but-equal” schools in 1896. . . . I believe McCain-Feingold will be reversed someday.

“In the meantime, conservatives should target all incumbents who voted for this odious legislation.”

Tapscott suggests that conservatives note in radio and TV campaign spots that “starting X days from today, you won't be able to hear this ad because Congressman Y helped pass a law to silence his critics.” He suggests circulating petitions to “save Free Speech—Recall McCain-Feingold.”

There are probably a hundred ways of informing voters that their incumbent congressman wants to silence them. The effort to repeal or reverse McCain-Feingold must come from grassroots America and must challenge everyone holding office or seeking office to choose sides: Are you for the First Amendment—or not?