Among the founding principles of our republic, the following statement stands highest:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
The language reveals it to be a part of the Constitution of the United States: Article VI, Section 2. It’s the original “supremacy clause,” under which Chief Justice John Marshall proclaimed the doctrine of judicial review. It makes the Constitution our highest legal authority. Its dictates are not to be contradicted, dismissed, or qualified. Legislation that attempts to do any of that, including anything in any state constitution or charter, is inherently unConstitutional and is automatically nullified.
Be not afraid! I’m not here to rant about the many times that clause has been ignored by executives, legislators, judges, bureaucrats, and so on. I have something else in mind.
Have you ever heard someone who’d been accused of something vile claim that he answers to “a higher authority?” It happens now and then. It made the news recently when the notorious Anthony Fauci said he’d discarded his Catholic faith for “a higher authority.” Fauci’s vanity is such that the “higher authority” he had in mind could only have been himself. But others who echo that claim aren’t quite so obvious.
Catholics in public life are often accused that their highest loyalty lies with the Pope. That was one of the shafts aimed at John F. Kennedy, our first Catholic president. “Can you trust that he’ll always put America first?” his detractors asked. Yet there was nothing to fear then, and there’s nothing to fear today, for the supreme authority to which Catholics’ loyalty really goes is Christ – and all He asked of anyone is easily and succinctly stated:
But when the Pharisees had heard that he had put the Sadducees to silence, they were gathered together. Then one of them, which was a lawyer, asked him a question, tempting him, and saying, Master, which is the great commandment in the law?
Jesus said unto him, Thou shalt love the Lord thy God with all thy heart, and with all thy soul, and with all thy mind. This is the first and great commandment. And the second is like unto it, Thou shalt love thy neighbour as thyself. On these two commandments hang all the law and the prophets. [Matthew 22:34-40]
That doesn’t seem at odds with the Constitution or any laws that conform to its requirements. Neither do its immediate implications as spelled out in the Ten Commandments.
Much of the chaos that’s erupted in our nation of late rests on a premise similar to the “higher authority” claims of such as Fauci. For example, no one could possibly be unaware that stealing is against the law. Yet there are a lot of people doing it. If asked to justify their behavior – without recourse to force – most would be unable. The articulate few would say something about “all wealth is stolen,” or “restitution for years of oppression.” In effect, those are claims that the looter is conforming to a law that ranks above the secular laws of these United States: a “higher authority.”
This is in the nature of a justification: “an argument that something is right, or reasonable.” Any proclamation that some known law does not apply to one’s actions must appeal, even if not explicitly, to a higher law.
The day before yesterday, the celebrated Maura Dowling wrote:
A NY Times article, Inside the Troll Army Waging Trump’s Online Campaign, claims an army of sinister, cruel trolls working for Donald Trump are spreading misinformation online.
“Much of the group, which refers to itself as Trump’s Online War Machine, operates anonymously, adopting the cartoonish aesthetic and unrelenting cruelty of internet trolls,” Ken Bensinger wrote for the Times.
He continued. “Cheered on by Mr. Trump, the group traffics freely in misinformation, artificial intelligence, and digital forgeries known as deepfakes. Its memes are riddled with racist stereotypes and demeaning tropes about L.G.B.T.Q. people and broad scatological humor.”
Bensinger suggested meme makers be treated as Super PACS and regulated as such with no coordination with Donald Trump.
What “higher authority” would you suppose Bensinger would cite as high enough to override the Constitution’s guarantee of freedom of expression? As far as I know, God’s silent on the subject. But surely Bensinger has something in mind. “The greater good” or “defense of our democracy,” perhaps?
Are you aware, as Harvey Silverglate has propounded, that you’re a felon in the eyes of the State? What’s that? You’re unaware of having committed any felonies? Well, I don’t know you personally, so it’s just possible that you’re legally untouchable. But Silverglate has a good argument for his position. Were you to be haled before a federal court and asked to justify some “felony,” how would you respond?
“You have or have not violated legislative compulsion programs,” stated the Sirian; and that was the most prolonged session of all. Try as he would, Forrester could not seem to get across the idea of a personal ethic—of laws that one did not violate, because they were morally right, and of laws that everyone violated if they possibly could, because they were morally irrelevant.
Does such a “personal ethic” qualify as a higher authority? If so, why – and in what specific cases would such an ethic not apply?
Just a few early-morning thoughts.