Saturday, September 5, 2015

A Little Civics, Perhaps?

In our system, the Supreme Court determines the constitutionality of laws, and there is no higher authority than it.  When it gets things wrong, as it sometimes does, it does so with no less finality.

The Supreme Court adjudged the continuing denial of state sanctioned marriage to same sex couples to be unconstitutional based on equal protection provisions of the 14th Amendment.  The decision was controversial, and it was poorly rendered.

An official of a county in Kentucky believes that she cannot in good conscience, provide same-sex couples with marriage licenses, as it is her responsibility under the law, to do, as long as such other laws as are in force in that jurisdiction are followed.  She is neither following the law or doing her job.

The complication here is that there is a religious practice issue, one worthy of respect.  The official in question refuses to grant same sex couples licenses on religious grounds.   The law under which she previously in good conscience, performed her duties, has changed, and its constitutionality has been validated.

And so, this official must A) issue licenses or B) quit.  There really is no middle ground here, I'm sorry.

One can cite all sorts of other instances where public officials aren't following the law (Obama immigration, DC open carry, etc), and one would be correct in pointing out that these are also unacceptable.

What is most dangerous of all to the continuing function of our democracy is the degree to which previously clear thinking individuals now believe it is acceptable to pick and choose among the laws we follow of which we approve.  Worse yet, is the "they are doing it, so why shouldn't we" mentality that often accompanies this behavior.

Conservatives are special, and useful, and dare I say, correct--in no small part because we tend to embrace principles while eschewing the emotion of the moment.  And while it may be initially satisfying to call for resistance and take to the barricades over a local official standing her ground against the immorality of the federal government, the truly conservative manner in which to view this situation is the long view, one in which we think CLEARLY about the long term consequences of allowing government officials to pick and choose laws to  enforce.  Some of those laws are likely to be among ones conservatives value.  And because those with whom we disagree seem to have decided to make this practice of selective enforcement a habit, in no way requires us to do the same.

In other words--don't come bitching to me about Hillary and her servers and her email and her TS/SCI traffic on unclassified channels if you in the next breath, support the actions of a county clerk to deny legally able citizens their right to marry.  Both actions are wrong.  And we must not become confused about this.


"The Hammer" said...

Judicial review is extraconstitutional established by Marbury v Madison. It's is a manipulation by John know that. I don't have a problem with judicial review per se, in fact I think it's a good thing. But one of the problems is judicial power like this was not considered and addressed by the framers of the Constitution; therefore, there are few Constitutional checks on THE COURTS. It's pretty much whatever the hell they think they can get away with.
The gay marriage issue is so blatantly unconstitutional with no foundation is law whatsoever, that this is the perfect issue and the perfect time to sort out what the courts can and cannot do.
There is this thing called "civil disobedience" too. When the powers that be overstep their bounds in such an unjust way, we are OBLIGATED to resist.
Wouldn't you agree?

The Conservative Wahoo said...

Indeed I do. But that's what quitting is. Also, while I again--disagree with its reasoning--I don't disagree that the Supremes "overstepped" anything. Judicial review was certainly discussed by the founders--Madison's notes on the Constitutional Convention make it clear that it was assumed.

"The Hammer" said...

Assumed but to what end? The idea was kicked around but it never made its way into the document.
Let's see, I assume when I invented football there would be a forward pass, so the first game a ref says a forward pass is cool, but doesn't have any rules as to what a forward pass is or isn't. Therefore anytime I throw the ball down the field from anywhere on the field in any situation it's just hunky dory.
Sorry, don't get it.

"The Hammer" said...

Let's just drop back and punt, I want to hear TigerHawk's opinion on this. He's the damn lawyer! Maybe he can add something of value.
Mu God in Heaven...what am I thinking?

The Conservative Wahoo said...

Watch it, and apply to this situation.

JB said...

Your "A Few Good Men" clip didn't make sense to me in the context of this discussion. Perhaps you could elaborate. In the interim, here is a NYT editorial about the middle ground that you maintain doesn't exist:

The Conservative Wahoo said...

Ah JB...where to begin...I'll start with providing you the context you desired. See the other comments, where Hammer takes a strong position about the extra-constitutionality of judicial review, and I take the position (based largely on Madison's "Notes" and The Federalist) that judicial review was least to a number of well-informed founders. The clip I used demonstrated the concept of something that was not specifically included in authoritative documentation that was nevertheless, quite inferred by it.

As for your assertion that there is "...middle ground that (I) you maintain doesn't exist...", that is a tendentious reading of my views.

First, I find it deplorable that this woman is in jail. So clearly, some middle ground is vouchsafed there.

Second, I think that North Carolina's accommodation makes a lot of sense. So there's even more middle ground.

But--Kentucky law is currently different. The clerk in question did no have an option that her counterpart in NC has. So in THIS specific and narrow instance, she should have done what her job required or resigned.

There is plenty of middle ground, and my MO here on this blog (just ask Hammer) is that I plow it all too often. As soon as some of it becomes legally available, I'll advocate for it here too.

JB said...

I was simply referring to your statement:
"There really is no middle ground here, I'm sorry." I believe in speaking succinctly & plainly. I apologize if I assume that others do to.

Even in this narrow instance, she could petition for relief from the Governor (and that's what her legal team is presently doing).

JB said...

. . . also, your comparing Hillary's E-Mail scandal & "sanctuary" cities (among others) w/ this case in Kentucky is apples & oranges. The clerk in KY is objecting on religious grounds, religious freedom being protected under the constitution. I'm not aware of any constitutional protection to flout the federal immigration laws nor violate every imaginable national security protection.

The Conservative Wahoo said...

I'm sorry---did I mention sanctuary cities?

And the comparison was one of public officials not following the law, which is clearly the case in KY and probably the case with Mrs. Clinton.

JB said...

I give up . . . but I'm guessing w/ the pedantic & condescending replies that was the goal.

The Conservative Wahoo said...

Sorry, not my aim. I think you had a decent original point on "no middle ground"--though I tried to explain that those words were limited to this case, rather than the exercise of religious liberty generally. From there though, I simply wished not to be misunderstood. I don't think my comparison of Hillary and this woman is off target given how I constructed the comparison. In many other ways, yes, it is apples and oranges. But those weren't ways I chose to compare.

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