The Virginian-Pilot: The constitution must be defended
By: Speaker William J. Howell & Senator Thomas K. Norment
“IF ONE MAN can be allowed to determine for himself what is law, every man can. That means first chaos, then tyranny.”
United States Supreme Court Justice Felix Frankfurter wrote those words 70 years ago, but they are applicable to the actions of Gov. Terry McAuliffe today.
Over the past four months, McAuliffe has engaged in a series of unconstitutional actions that undermine our representative democracy and the rule of law. He has placed himself above the law and the Constitution of Virginia, foregoing 240 years of history and precedent in pursuit of his political goals. The governor has disregarded and derided the Supreme Court of Virginia, attacking the integrity of the honorable men and women who serve as its justices.
As elected leaders in the legislature, we have a solemn obligation to defend the Constitution of Virginia. No matter how noble the governor’s policy goals, he is not allowed to usurp the constitution and the rule of law. And no matter how much he continues to falsely impugn our motives, we will continue to stand for those ideals.
Two days after the General Assembly completed its work in April, Governor McAuliffe attempted to restore the political rights of more than 206,000 convicted felons – including at least 40,000 violent felons – with a single order. Not willing to stand idle while he trampled the constitution’s separation of powers, we filed a lawsuit challenging his actions. In July, the state Supreme Court struck down the governor’s order in a sweeping rebuke of executive overreach.
The Supreme Court based its ruling on the plain text of the constitution, scores of legal precedents, and more than 240 years of unbroken Virginia history. No governor had ever purported to have the power this governor seized for himself. The court’s July order was unequivocal; there was no gray area or loophole for the governor to exploit.
McAuliffe has said he “cannot accept” the Supreme Court’s decision. He has openly and repeatedly declared that he would defy the court. When announcing the restoration of rights to 13,000 of the felons included in his original order, he pledged to continue that process until the rights of all 206,000 felons were restored.
Instead of ensuring his administration was fully adhering to the requirements of the court’s ruling when issuing these new restorations, the governor spent the past four weeks attacking the integrity of the justices. He accused them of being “scared” and of harboring political motivations. This is more than inappropriate; it is unacceptable.
The governor’s open defiance of the court and his attacks on its justices strike at the heart of our commonwealth’s founding principles. He is undermining the rule of law and the principles of a representative democracy secured by the separation of powers.
Reaffirming the rule of law in the court’s decision, Chief Justice Donald Lemons wrote, “Although the governor is entitled to champion his views, he cannot do so in contravention of law.”
In another case more than 35 years ago, the Supreme Court put it another way: “It is not for him to set himself above the law and go his own way because he deems the law’s requirements to be unwise or its restraints vexatious. In such manner does a government of laws become a government of men.”
That is the fundamental issue at stake in this dispute. No matter what you think of the governor’s policy, he is acting unlawfully, effectively placing himself above the law. That is not how things work in the United States. A governor can work to change the law, but he cannot ignore it. To lawfully obtain the policy change he seeks, he has to first persuade the people’s elected representatives in the legislature of its merits.
America is different than many nations because our government is based on the rule of law and not men. But what happens when one man does not see his power constrained by constitutional limits? As Justice Frankfurter said, first chaos, then tyranny. If a governor is not bound by the rule of law, then why are you, or why is anyone?
We have an obligation to uphold and defend the state constitution. That obligation compels us to ask the Supreme Court to hold the governor in contempt. It brings us no joy in having to take this course of action. But if we do not defend the rule of law, the foundations of our government will decay. That is result we – and the people of Virginia – cannot afford to abide.
Bill Howell is the speaker of the Virginia House of Delegates. Tommy Norment is the majority leader in the Virginia Senate.