Why Not One Governor is Qualified to be President

SellwynThumbby Selwyn Duke2/19/15
Our Constitution has become a suicide pact. That’s the view of Thomas Jefferson, expressed in an 1819 letter to jurist Spencer Roane, when he said “If this opinion be sound, then indeed is our constitution a complete felo de se (suicide pact). The opinion Jefferson referred to is the legitimacy of judicial review, the idea, as he put it, that “gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres.” He warned that accepting such a doctrine makes “the Judiciary a despotic branch” that acts as “an oligarchy.”

That “opinion” has been accepted. The despotism has befallen us. The oligarchy reigns.

In recent times federal judges have ruled that Arizona must provide driver’s licenses for illegal aliens, states such as Utah and Alabama must allow faux marriage, and a Wisconsin voter-identification law is unconstitutional. And these are just a few examples of judicial usurpations that continue unabated and go unanswered. But the answer, which needs to be given first and foremost by governors, is simple:


No — I will not abide by the court’s unjust ruling. The Constitution is the supreme law of the land and, insofar as the central government or judiciary violates it, it renders itself illegitimate. As the governor of my state and head of its executive branch, I am charged with the enforcement of its laws. And we will recognize no more unconstitutional juridical or federal dictates.”

(Note: while my main focus here is our much abused judicial review, I’m advocating the same course with respect to all unconstitutional dictates.)

If this seems radical, note that even Abraham Lincoln agreed, saying in his first inaugural address, “[I]f the policy of the government, upon the vital questions affecting the whole people, is to be irrevocably fixed by the decisions of the Supreme Court…the people will have ceased to be their own masters, having to that extent resigned their government into the hands of that eminent tribunal.”

The process I’m advocating here is known as nullification. And should anyone still think it radical or unprecedented, know that we’d only be taking a leaf out of the Left’s book. Explanation?

What do you think “sanctuary cities” are?

They’re places where liberals have decided they’re simply going to resist federal immigration law.

What do you think is happening when states (e.g., Colorado) and leftist municipalities ignore federal drug laws? Nullification is happening.

Yet no matter how egregious, un-American, unconstitutional and despotic the federal or judicial usurpations, the conservative response is typified by what Utah governor Gary Herbert said — feeling oh-so principled, I’m sure — after the federal faux-marriage ruling: “[U]ltimately we are a nation of laws and we here in Utah will uphold the law.” Yes, we’re supposed to be a nation subject to the rule of law.

Not the rule of lawyers.

And our governors are allowing subjection to the latter, feeling noble playing by rules the Left laughs at.

It’s not surprising that revolutionary spirit has been cornered by liberals. The only consistent definition of “liberal” is “desire to change the status quo” — it is revolutionary by definition. In contrast, the only consistent definition of “conservative” involves something antithetical to revolution: the desire to maintain the status quo. Of course, it completely eludes conservatives that today’s status quo was created by yesterday’s liberals. And one modern status quo is to lose culture-war and political battles to the Left. And, boy, do conservatives ever maintain that one. They’re like a guy who goes into a fight, gets poked in the eyes and kicked in the kneecaps, loses, and then the next time still thinks he’s got to follow Queensbury rules.[pullquote]Of course, it completely eludes conservatives that today’s status quo was created by yesterday’s liberals. And one modern status quo is to lose culture-war and political battles to the Left.[/pullquote]

We hear a lot of talk about “states’ rights.” Ex-Texas governor Rick Perry was a good example of a big talker. But where’s the beef? Merely flapping lips doesn’t sink big-government ships. There have been nullification efforts by state legislatures, mainly regarding federal gun-control law, and many sheriffs across the country have vowed not to enforce such law. And Alabama’s Judge Roy Moore is currently defying a federal faux-marriage ruling. This is laudable, but why are the chief executives MIA? If only we had a governor with the guts of a good sheriff.

We’re meant to be a nation of states, not a nation state. But rights mean nothing if you’re not eternally vigilant in their defense, if you don’t actively stand against those who would trample them. In 2013, Attorney General Eric Holder threatened Kansas with legal action over a new anti-federal-gun-control state law. If the courts ruled against the state, what would Governor Sam Brownback do? Make some “principled” comments about the rule of law(lessness) and then assume the prone position?

This is why I say not one governor is truly qualified to be president: If a chief executive will not oppose federal tyranny while the head of a state government, why should we think he’d oppose federal tyranny once head of the federal government?

History teaches that entities don’t willingly relinquish power; it didn’t happen in 1776 and it won’t happen now. People are generally quite zealous about increasing their power, though. This returns us to the courts’ usurpations. Do you know where the power of “judicial review” came from? It was declared in the 1803 Marbury v. Madison decision — by the Supreme Court.

That’s right: the Supreme Court gave the Supreme Court the Supreme Court’s despotic power.

Of course, unilateral declarations of power are not at all unusual historically. It’s what happened whenever an agent of tyranny — whether it was a conquering king, communist force or crime syndicate — took over. But these despotisms were enforced, as Mao put it, “through the barrel of a gun.” It wasn’t usually the case that the subjects rolled over like trained dogs lapping up lawyer-craft. Oh, it’s not that I don’t see the crafty lawyers’ position. I might like to crown myself Emperor of America, but, should I insist I possess this unilaterally-declared status with enough conviction, I may get a stay in a mental institution. The courts get to dictate to everyone else and spread insanity all the way around.

Perhaps it needn’t be stated, but the power of judicial review isn’t in the Constitution. So is it any wonder that a federal court, concerned about Barack Obama’s comments relating to the judiciary, asked his administration in 2012 to submit a formal letter indicating whether or not it recognized the power? Judicial review, being an invention, is dependent upon the acquiescence of the other two branches of government.

Oh, and what is Obama’s actual position? He believes in the court’s power — when it serves his agenda. Otherwise, he’s willing to ignore court rulings himself, as he did when suing Texas over voter ID in 2013. (In fact, never mind the courts. Obama ignores duly enacted federal law he doesn’t like.)

The lesson?

We can even learn from Obama.

The idea of judicial review is thoroughly un-American. As Jefferson also pointed out, judges are not morally superior to anyone else, having “with others the same passions for party, for power, and the privilege of their corps.” Despite this, he wrote in his letter to Roane, while we’re meant to have “three departments, co-ordinate and independent, that they might check and balance one another,” judicial review has given “to one of them alone, the right to prescribe rules for the government of the others”; moreover, he continued, this power was given to the very branch that “is unelected by, and independent of the nation.”  Jefferson then warned that this has made the Constitution “a mere thing of wax in the hands of the judiciary, which they may twist, and shape into any form they please.” And our country is being twisted along with it as patriots twist in the wind.

Jefferson’s position is just common sense. We cannot be a government of, by and for the people if 9 unelected Americans in black robes can act as an oligarchy and impose their biased vision of the law on 317 million Americans. That is not what the Founding Fathers intended.

Nonetheless, most conservatives are waiting for the next election or the next court ruling or the next president to right the ship, but they and their republic will die waiting when remedial action can be taken now. Nullification — when properly exercised, it’s a fancy way of saying “standing up for the law of the land.” Were I a governor, I’d tell the feds to pound sand and that if they didn’t like it, to send in the troops. I might ultimately end up in federal prison, but I’d light a fire and spark a movement — and become a hero and martyr to millions.

It’s waiting there for you, governors, glory and God’s work. We just need a leader, someone with greater passions for principle than “for party, for power.” It’s waiting.

Rise, American hero, rise.

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19 Responses to Why Not One Governor is Qualified to be President

  1. Brad Nelson Brad Nelson says:

    Jefferson’s position is just common sense. We cannot be a government of, by and for the people if 9 unelected Americans in black robes can act as an oligarchy and impose their biased vision of the law on 317 million Americans.


    Were I a governor, I’d tell the feds to pound sand and that if they didn’t like it, to send in the troops. I might ultimately end up in federal prison, but I’d light a fire and spark a movement — and become a hero and martyr to millions.

    Double yep.

    • Rosalys says:

      “Were I a governor, I’d tell the feds to pound sand and that if they didn’t like it, to send in the troops. I might ultimately end up in federal prison, but I’d light a fire and spark a movement — and become a hero and martyr to millions.”

      But it seems we don’t have a governor up to the job, so it must fall on we the people.

  2. Timothy Lane says:

    The problem is very simple. Anyone who rejects politically correct SCOTUS rulings will be demonized by the leftist clerisy, whereas anyone who quietly refuses to enforce politically incorrect SCOTUS rulings will be hailed by them. This makes it safe for liberals to act as they do. But whatever you may think of the governors, can you think of any prospective presidential candidate who would pull an Andrew Jackson (“Mr. Marshall has made his law, now let him enforce it”)? Roy Moore isn’t running, after all.

    • Brad Nelson Brad Nelson says:

      That reminds me of a general rule of conservatism. The process, and not just the result, matters. For the Left, all that matters is the result, so if it suits their purposes, they’ll be for judicial activism. If not, they suddenly start sounding like Mark Levin. Integrity is also not a left wing value.

      • Timothy Lane says:

        The term for those concerned solely with results is “teleology” (I got if from articles by the late Joseph Sobran a decade or so ago). Liberals are extreme teleologues, probably because of their infantile focus on their own desires to the exclusion of anything else.

      • Pst4usa says:

        Brad I have to disagree with your rule from above; to the left the intent is all that matters, results are meaningless. Just look at education, welfare, war on poverty and so on, try to name one liberal cause that has worked, but not one of them is every let go because it failed, in fact, they have all been failures. If we just dump more money into it, then this time, Communism will work for sure.
        I do not have any argument about the first part though, the importance of process that is.

        • Brad Nelson Brad Nelson says:

          We can have it both ways, Pat, if we agree that the intent of the Left is power and a sense of themselves as The Golden Children who are kind, compassionate, caring, saviors of civilization, smart, etc. That’s why actual results don’t tend to concern them.

          They also tend to be driven by grievance, of course, so things such as education, poverty, war tend to be means to sticking their daggers into there hated “Hey hey, ho ho, Western Civ has got to go.”

          On the other hand, conservatives believe that the ends don’t justify the means. The means matter. There is (or should be) a non-zealous, non-Utopian thought pattern on the right. We are the adults. They are the spoiled children.

          But you make some great points. I stand somewhat corrected. 🙂

          • Timothy Lane says:

            To be precise, the actual goal of the Left (and thus the purpose of all their policies) is increased power. But the justification they give is their self-proclaimed good intentions and their equally self-proclaimed superior morality and intelligence.

            If they really meant it, they would be concerned about the results, but since the intentions are merely an excuse, they don’t like the results to be examined. No good can happen from such a test; if they turn out to work, that doesn’t matter because they already claim to assume that. But if they don’t, they would have to adjust their policies, which would probably reduce their value in terms of increasing their power.

            • Brad Nelson Brad Nelson says:

              To be precise, the actual goal of the Left (and thus the purpose of all their policies) is increased power.

              Timothy, I wouldn’t go that far. I think the Left has some very specific ideas about how they want the world to be. This drives them as well. And what makes the issue somewhat complicated is that the Left often has fuzzy notions regarding the specifics. They just know that if they are in charge, it will all somehow work out, thus it is quite true that one of their primary goals is the acquisition of power, ever and always.

          • Pst4usa says:

            No doubt on the both ways part. Timothy, I think you are correct about the ultimate goal for the controlling faction of the left, but the vast majority of the left are, as Stalin I believe said, useful idiots, where the intention of a policy is all that matters. If one were to ever work than you are also correct, their response is of course it did, how could you ever doubt, we are of course better, kinder, smarter, nicer, more compassionate, more feeling, and the list is endless. No one can be on the left without massive self esteem and simultaneously being able to play the victim card with a straight face.

            • Timothy Lane says:

              I basically divide liberals into the liars and their willing dupes. This is why “ovine” is one of the most accurate words defining the ordinary liberal (and frequently “psittacine” as well). Inner Party liberals see their Outer Party as really little different from the proles.

  3. James Smith says:

    God bless judge Roy Moore for his willingness to enforce the constitution of the state of Alabama. He would make a great governor of that state and could demonstrate how much good could be done with “nullification” to 49 other governors.
    If there was a governor among the 50 willing to stand up to the feds, I would give serious consideration to packing up my family and moving to that state to support it’s independence and/or secession.

  4. Jerry Richardson says:


    Outstanding article!! It should somehow be made required reading for all State Governors and legislators. If our state officials would get this understanding and some guts to go with it, the problem of judges “legislating from the bench” could be at least by-passed if not solved.

    I was working on an article about “nullification” but your is so good, I think I’ll just pass at least for awhile. However, here is part of what I was going to say:

    The so-called “judicial review” power-grab by Chief Justice John Marshall has worked more mischief against Constitutional freedoms than any other single judicial act in US history. It has facilitated the insanity of considering the Constitution as a “living document.” The only “life” that the founding fathers gave to the Constitution was the document itself and the self-contained and defined process of amendment of the existing constitution. There is no hint anywhere that the founding fathers ever considered or intended that a governmental organization, including the Supreme Court would or should have the power to unilaterally alter the Constitution via their personal interpretations.

    The founding fathers obviously intended for the written Constitution to be the final law of the land, NOT some judicial-interpretation of the written Constitution by judges.

    But you argue, no document is self-interpreting; and that is absolutely true. But the founding fathers obviously did not wish to place the awesome power of final interpretation in the hands of ONLY the Supreme Court. If they had intended that, they would most assuredly have enumerated it in Article III (where judicial powers are enumerated).
    —Jerry Richardson

  5. SkepticalCynic SkepticalCynic says:

    What an eloquent discourse! Your and Jefferson’s words are a beautiful song to my heart. Lord, if there is a Heaven, please, PLEASE, let just one governor stand up for free men.



  6. Brad Nelson Brad Nelson says:

    I’m not saying that Jeb Bush is a bad man. There’s no need to demonize him just because he’s a Progressive Republican. But is he really a Reagan conservative?

    Well, you can see the spin machine is out in full force, including this article by Christopher Ruddy: Jeb Bush a Reaganite? Oh, Yes He Is

    Watch for NRO to push a profusion of pro-Jeb articles. They do seem to be the machine for Establishment Republicans.


    Very interesting article by Selwyn. As it happens, I both agree and disagree with portions of it.One does hear now and again complaints about the doctrine of judicial review from Conservative quarters, but this is one of the few times I have heard anyone except myself advocate resistance of Federal usurpations by state governors. At the time the 26 states sued over Obamacare and lost in the courts (which I’ll come back to in a minute), I really hoped (but did not expect) that a state governor with real courage would lead open resistance to Obamacare. If all 26 governors had hung together and nullified the act, Obama would have been helpless – no doubt he would have liked to execute the lot of them, but the American people would never have tolerated calling out the military to enforce Obamacare against a majority of the states. It would have been a modern-day Magna Carta moment, with the awful King John (Obama) forced to acknowledge limits on his power. Indeed, I would say it is obvious now that some form of nullification must be added to our Federal system as a check on Federal power by non-Federal authority (the states or the people themselves). (I favor a “Court of the States” that could strike down any Congressional enactment with the concurrence of more than 1/4 of the states, since 3/4 of the states must agree to Constitutional changes, but that is a subject for another day.)

    Let us return to the subject of judicial review and the Obamacare lawsuit. Remember Chief Justice Roberts’ infamous decision? Apart from contorting the plain language of the statute and the clear intent of the “lawmakers” (Democratic organizations, staffers, and hangers-on) to turn a penalty into a tax and thus salvage Constitutionality, Roberts did something else: he said that it was not the job of the judiciary to save the people from bad enactments of the elected branches, and that if people didn’t want Obamacare they could elect a new Congress which would repeal it – in other words, Roberts explicitly negated the doctrine of judicial review.

    Roberts was wrong, and so is Selwyn to the extent they are asserting that the Federal Judiciary has no power to declare Acts of Congress void. It is quite true that no such explicit power is granted in the Constitution, and the Framers disagreed about whether the judiciary would or should have the power to declare acts void, but the existence of the Constitution itself as the supreme and paramount law of the land implies that such power must be granted the judiciary, lest the legislative branch become supreme.

    Remember that the entire purpose of the Constitution is to protect the citizen from the federal government (the Left doesn’t want to know this). Chief Justice Marshall, in Marbury v. Madison, drew the distinction between governments that were limited and those which were not, and I do not see how we as Conservatives can fault him for doing so. We must ask ourselves what mode of redress we have if Congress abridges our freedoms (as it most certainly did with Obamacare) and the judiciary does not have (or refuses to exercise) the power of judicial review? The answers are (1) Nullification, recommended by Selwyn (and myself); (2) Secession from the Union; (3) Revolution to overthrow the Federal Government and institute new government with more limited powers.

    Notice the problems with all three of these modes: (1) leads to civil war if the Feds don’t back down, (2) ditto, (3) after the New Revolution, we have the same problem we did before about stopping Congress from overstepping its bounds! And indeed, since our experience since 1787 is that legislatures will routinely overstep their bounds and try to do all kinds of things they were never authorized to do, shall we live in a constant state of civil wars and unstable governments? Or is there a better way?

    Yes, there’s a better way, at least as a preliminary method, leaving the more drastic modes of redress for those occasions where there is no alternative – judicial review! When Congress goes too far, the citizen should be able to go to court – the proper venue for asserting legal rights – to get a declaration that Congress had exceeded its bounds as prescribed by the Constitution and that its Acts are therefore void and of no effect. In the Obamacare case, for example, the Constitution did not give Congress the power to enact the individual and business mandates, or to regulate the practice of medicine, or to do many other terrible things that Congress nonetheless sought to do. It was the responsibility of the Supreme Court to say this and strike down the law, and Chief Justice Roberts failed miserably to do so. Without judicial review, we are immediately subject to a tyranny of the majority (and in the case of Obamacare, a tyranny of the minority as I have pointed out several times, since at no time did a majority of Americans want the Act passed). Nor did Marshall simply concoct judicial review out of thin air – the English courts used to strike down acts of Parliament inconsistent with natural justice or the common law, and in America it had for some time been the practice of state courts to strike down state laws contrary to state constitutions. This history is too long to get into here.

    Of course judicial review can be and has been abused, almost entirely by the political Left, the most obvious example being Roe v. Wade. This was inevitable given the nature of the Left – to seek power using any possible method – and should be described as judicial activism rather than judicial review. The method is to impose Leftist policy goals (almost always the enhancement of government power, but abortion is one of the Left’s goals – to say more would take us too far afield here) under the guise of exercising judicial review. This is a far cry from merely concluding that Congress is not granted any power to require the citizen to buy health insurance of which government officials approve, which is obviously the case. In the case of Roe, it is patently obvious that the people who adopted the Constitution and its Amendments had no intention of divesting their state legislatures of the power to restrict abortions, therefore Roe is a case of judicial activism.

    One last point: obviously, there must be some control of the courts to prevent them from engaging in judicial activism. There are several possible answers to the problem, but I will point out that the Constitution itself provides two: Congress has the power to limit the appellate jurisdiction of the Federal courts, and of course the Constitution itself may be amended to foreclose on a particular decision. Thus all abortion cases could be placed off-limits as punishment for the Supreme Court’s attempt to make law from the bench, for example. And the 14th Amendment was written, at least in part, to overturn the Constitutional principle announced by the Supreme Court in the Dred Scott decision.

    • Timothy Lane says:

      It’s good to differentiate between judicial review and judicial activism. To me, the latter refers specifically to judging laws on the basis of something other than the Constitution and the written law — usually personal political opinions. This is what liberals do, to such an extent that I get the feeling from reading their arguments on the subject that they can’t grasp the idea that one can support a notion but consider it unconstitutional — or oppose a notion but consider it constitut8ional.


        I think your observation about the Left is absolutely correct, Tim – they can’t conceive of wanting to enact some policy but being restrained by Constitutional scruples. In other words, they have no integrity but only seek power at all costs.

        As for we Conservatives, we are left bemoaning certain state policies (e.g. Romneycare in Taxachusetts) but admit it doesn’t violate the Federal Constitution. Of course, the answer to our problem is to amend the state constitutions to properly limit state governments.

        • Timothy Lane says:

          Actually, I recall that there were some who argued that Romneycare did in fact violate the Massachusetts state constitution, though I’m not sure anyone ever provided the citations to prove the claim.

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