The Threat to our Republic from Legal Ignorance
Cynthia Dunbar © January 23, 2024
Scripture warns “my people perish for lack of knowledge.” Ignorance is a word that has become synonymous with the pejorative of being mentally deficient. However, that is not definitionally correct. Ignorance has absolutely nothing to do with intellect. It has to do with lack of exposure, or simply not having received instruction on a particular issue. We have all heard the maxim, “ignorance of the law is no defense.” Well, if that applies to the average citizen, then it should most certainly apply to judges.
The recent Colorado Supreme Court decision of Anderson v Griswold disqualified Trump from Colorado’s Primary ballots. In my estimation this decision is so fraught with legal error as to boggle the mind. The only reason such a decision can be passed off as arguably meritorious is because of the shortcomings of the modern legal education system. In short, law schools fail to teach law students the law.
The entire course of study over three years is spent studying what is known as “tertiary law,” which is itself a legal misnomer. To clarify, students are taught there are three types of law: primary, secondary, and tertiary. Primary law is the Constitution itself. Secondary law is statutory, or those laws that are legislatively enacted. Tertiary law is case opinions or judge-made law. But, of course, we all know that judges have no law-making authority under Article III of the Constitution. So, how is it that such decisions get labeled as “law,” and even more perplexing, why is this the predominant type of “law” studied in law schools? It certainly makes for a deficient legal community when it comes to equipping it to preserve our Constitutional Republic as it was intended.
Perhaps the court’s errors are flagrantly obvious to me since I assess issues from the perspective of jurisprudence or legal philosophy rather than merely as a lawyer or historian. But I do not think so. I believe that as I point out these errors, they will be clear and egregious to everyone.
First, there is the simple fact that a primary “election” is somewhat of a misnomer. Primaries do not elect anyone to office. Rather, they are simply intra-party nominations. In short, general elections are the only true elections afforded to the people at large. Primaries are a creation of a society that has embraced the factions of parties and allows those parties to select and put forward in the general election their preferred candidate. Such an understanding brings up a host of questions and issues. For example, how can Colorado legitimize a statute that enabled a complaint concerning an intra-party nomination to be brought forward by non-member plaintiffs? For those who would argue, well, 4 of the 6 were, such factual analysis cannot cure a deficiency within the underlying law.
Ultimately, one must wonder about the rationale behind a state making its taxpayers pay for the expenses of private political party nominations. This is especially questionable considering the strong warning against such factions made by George Washington in his Farewell Address. He was adamant that to embrace such partisanship would foster excessive divisiveness.
“Let me now take a more comprehensive view, and warn you in the most solemn manner against the baneful effects of the spirit of party generally. This spirit, unfortunately, is inseparable from our nature, having its root in the strongest passions of the human mind. It exists under different shapes in all governments, more or less stifled, controlled, or repressed; but, in those of the popular form, it is seen in its greatest rankness, and is truly their worst enemy….Without looking forward to an extremity of this kind (which nevertheless ought not to be entirely out of sight), the common and continual mischiefs of the spirit of party are sufficient to make it the interest and duty of a wise people to discourage and restrain it.”
This is an undeniably harsh rebuke of political parties. I am not taking a position quite so strong and disdainful of parties, as when they are properly managed, they can at times serve an important function of assisting voters in knowing candidates’ views. Unfortunately, where there is, as with the Republican Party, a hesitancy to disallow party affiliation for those who clearly do not align with its platform, such as liberal Sen. Susan Collins, party affiliation tends to lose any meaning and merit it might otherwise afford. In such a case it only serves to enhance polarization. Consequently, governmental engagement in private party functions is devoid of any legitimate governmental purpose and ultimately fuels divisiveness with taxpayer dollars. Additionally, it also opens the door to governmental intrusion into private party and non-governmental decisions. The actions of the Colorado Supreme Court are a prime example of such inappropriate governmental overreach.
Another misstep by the Colorado Supreme Court is its failure to apply the correct rules of statutory construction. Expressio unius est exclusio alterius is a well-established principle in statutory construction. It is a long Latin phrase that simply means that when one or more things of a class are expressly mentioned, others of the same class are intentionally excluded. The court’s analysis of the 3rd clause of the 14th Amendment ignored this principle when it threw any and every office into the definition of “officer.” The actual language of clause 3 is as follows.
“No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”
What is very odd is to assume that the office of President or Vice President was intended to be included in a laundry list of persons, while failing to specifically list them. That the drafters instead chose to begin with the lower offices of Senator or Representative in Congress but intended to include President and Vice President in the generic term of “officer of the United States” is legally indefensible. Clearly, I am not arguing for the ability of someone who has truly advocated for the overthrow of the Constitution to hold the highest office in the nation. However, there is no evidence whatsoever that President Trump committed insurrection. Additionally, since the drafters of Clause 3 did not include either President or Vice President in this plain language of clause 3, they clearly anticipated that such a high position would be protected by the collective knowledge and will of the people in casting their votes.
Time does not allow me to dive deeper into the substantive errors of the Colorado decision but highlighting even just a few of the procedural shortcomings should suffice. We all know the famous quote from Benjamin Franklin that we have been given a Republic if we can keep it. It seems even more challenging to keep when some of the greatest legal minds of the day are oblivious of the basic rules of statutory construction to the point that a state Supreme Court decision can be rendered and virtually nobody references the rule of expressio unius est exclusio alterius. I repeat, ignorance of the law is no defense, and this should especially be true of our legal community.
We are warned in Hosea 4:6 that, “my people perish for lack of knowledge.” A lack of knowledge is the very definition of ignorance. Let us, therefore, pray that the spirit of ignorance which opens the door to the spirits of confusion and chaos may be routed and exposed. Let us thank the Lord that King Jesus defeated every enemy of the TRUTH at the cross and that we have authority to stand over our nation and pray for revelation, understanding, order, and unity. Let us hold boldly to the declaration that Jesus is the TRUTH and that we shall know the TRUTH and the TRUTH shall set us FREE, and that where the Spirit of the Lord is THERE IS LIBERTY! And finally, let us not grow weary in well doing, knowing that in due season, we shall reap. May God Bless America!
Cynthia Dunbar is an attorney, author, constitutional scholar, Regent University Government Professor, former Liberty University Law Professor ordained Minister through FMCI, and co-host of the Constitutional Corner podcast. Follow Cynthia on X or Instagram, go to Freedom Focus to view her video shorts, or schedule her to speak at your next event.