“The idea of natural law superceding this court’s authority would be a dangerous precedent indeed,” U.S. District Judge David L. Bunning told Rowan County clerk Kim Davis.Turns out she's an elected official, which I hadn't realized. The government can't just fire her: she occupies the office by popular mandate. So jail it is, until and unless she submits to the will of the Federal courts.
UPDATE: On reflection, if that is the judge's reasoning, this is a case that really deserves appeal. There's an argument that natural law absolutely must supersede the court's authority because it is the source of the court's authority. The argument goes like this:
1) The Declaration of Independence states that breaking away from the British was justified by a decision to assume the separate and equal status to which "the Laws of Nature and of Nature's God entitle them."
2) The Declaration of Independence further states that the justification for the forming of this or any government is to protect rights from the "Creator," and that any government that becomes destructive of this defense of natural rights may be altered or abolished -- that is, superseded.
3) The US Constitution is only one such government, and indeed the second iteration of the project declared by the Declaration of Independence. It does not have authority separate from the appeal to the Laws of Nature and Nature's God cited in the Declaration.
4) Therefore, the Laws of Nature and Nature's God very much do supersede the decisions of this or any Federal court. Not only the court but the Federal government exist only to guard the rights that also are rooted in the Creator's laws.
5) Since the Constitution is justified as an iteration of this claim, the antiestablishment clause of the First Amendment must be read as not in conflict with the claim. No government can have a just power to violate the Laws of Nature and Nature's God under the terms of the Declaration, and this government is only the second iteration of the Declaration's project.
The Federal courts need to show not that they are independent of, let alone superior to, natural law -- they cannot be. They need to show that this project is in accord with natural law.
See also this paper, which inspired my line of thinking, and which is subtitled, "Why the Constitution is a Suicide Pact." By similarly deriving all Constitutional powers from the claims of the Declaration, he finds that there are some things that the Constitution cannot allow us to agree to even if it means our national destruction -- for example, abrogation of natural rights. If that argument is right, so is this one.
23 comments:
It's irritating that mandamus backed up by a contempt power is available for this clerk, but not for the President. When it comes to executive overreach in the White House, the courts don't seem to think they have any effective enforcement powers--certainly none that won't take longer to sort out than we can expect the administration to last.
Dang, Grim, you're starting to sound like me.
T, it also comes down to who will enforce the Court's order regarding the President--he's the one, after all, with the DoJ and the guns. As to the time involved, those kinds of lawyers bill by the hour, not by the case.
Eric Hines
What I find most amusing about all of this is that Ms. Davis is a Democrat - a fact not in evidence at any of the liberal blogs who have been literally foaming at the mouth about this story.
Too funny :p
Remember when San Francisco county clerks issued gay marriage licenses in violation of state law? No contempt citations then.
It's only threatening when they don't like the result.
When they do like the result, it's a vibrant demonstration of a free people living in an uber-vibrant democracy.
By similarly deriving all Constitutional powers from the claims of the Declaration, he finds that there are some things that the Constitution cannot allow us to agree to even if it means our national destruction -- for example, abrogation of natural rights. If that argument is right, so is this one.
The problem is that that argument isn't right.
Let's leave the outcome-based rationalizations to the Dems. They're far, far better at it than we are.
C'mon, Cass, give the guy a chance. :) Don't make your mind up based on my one-paragraph summation of his 126-page argument. I think you can read it for free -- I can, anyway, but there may be a cookie on my system somewhere that knows I have access to a library that has access to it.
This doesn't sound like an outcome-based rationalization. It sounds like an appeal to first principles, which is just the opposite.
The action by this judge is unacceptable. He should be removed from office.
The fact that this action was the result of a newly-issued Supreme Court opinion (with dissent) means that reasonable minds might differ on it. The clerk has asserted an important Constitutional right.
The appropriate response is a lawsuit and an appeal. Make the couples pay for that to enforce their rights. Of course, they do have the option to drive a few miles to another location to get a license. They have a remedy, and it is cheap, unless they are hell-bent on getting THAT clerk's personal signature, in which case they can file (and pay for) a lawsuit.
Valerie
Meh. Her theology is in error. But she is a heretic, so I suppose that just fits.
I don't think it's appropriate for a citizen to ever be required, or even asked, to explain their theology to the government.
Well, now we all know that The Laws of Bunning are superior to the laws of nature.
How'll that work for His Judiciousness v. Gravity?
The US Constitution is only one such government, and indeed the second iteration of the project declared by the Declaration of Independence. It does not have authority separate from the appeal to the Laws of Nature and Nature's God cited in the Declaration.
The Declaration was a document whose purpose was to set forth the reasons for the colonies to separate from (declare themselves independent of) England.
The Constitution is a document whose purpose was to replace the Articles of Confederation, which had proved too weak a foundation for national government. In the Constitution, there are no references to the Declaration, nor is there anything about natural law or rights. In fact, the preamble cites the authority pretty clearly and succinctly:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
Had the Constitutional Convention wished to explicitly ground the Constitution in the Declaration or upon natural rights (perhaps because doing so was considered so important that it must be spelled out for future generations) they could certainly have done so. But they did not. The Constitution was a negotiated compromise (an agreement) between the several states, and it gets its authorization from "We the people" who have decided "to ordain and establish this Constitution".
IOW, it is - explicitly, and by design - a social compact.
Therefore, the Laws of Nature and Nature's God very much do supersede the decisions of this or any Federal court. Not only the court but the Federal government exist only to guard the rights that also are rooted in the Creator's laws.
Laws of nature and nature's God, as set forth/interpreted by whom? You? Anyone? A majority of the polity?
And which God are we talking about? Since God doesn't come down and tell us exactly what He wants, who gets to speak for him? Which Church? Which philosopher? They don't agree, inconveniently :p
If there's a dispute (as there certainly would be, and is this very moment) who gets to decide the outcome? Do Americans who don't believe in God get a vote? Do people who disagree with this author about natural law get a vote? It's all very confusicating...
Since the Constitution is justified as an iteration of this claim, the antiestablishment clause of the First Amendment must be read as not in conflict with the claim.
Huh???? what does this even mean? Does it mean that because you or this author believe the Constitution has no authority outside nature's/God's law, then whatever is in Constitution must conform to God's law? Or that whoever has self-empowered himself to speak for God in informing the rest of us what God's law happens to be will strike down parts of the Constitution he doesn't care for?
We live in an imperfect world where God's word and will are subjects under constant debate. I eagerly await your explanation of how we're going to sort all this out, but in the meantime you'll have to excuse me if I find this whole line of reasoning no more practical or workable in the real world that the Articles of Confederation were.
OK, well, it is a long article so I'll understand if you don't want to read it. :)
This whole business about which God and whatever is actually to the side of the important question, which is whether the Federal courts are above natural law. The judge could have -- and I would have expected him to -- defended a different view of natural law, and decided the case on the grounds that the legislature or the SCOTUS had already considered the question and found this was not incompatible with natural law. He might have made clear that the government recognizes it was founded to protect the natural rights of human beings while laying out how we deal with our disputes about what those rights are.
Then he would be in alignment with what I take to be the correct reading, which is that the Constitution's rightful claim to authority has to be justified first in terms of a rightful claim to throw off the king. American Federal courts only have a righteous claim to authority if the Declaration is correct: otherwise, their entire history is in defiance to proper authority. The judge's power to hold someone in contempt is only valid if his court's authority is valid.
The Constitution is either aligned with the principles of the Declaration of Independence or it is subject to its critique. If it somehow is just a social compact that isn't about defending the natural rights of human beings, it might be allowed to continue so long as it happened to be useful for that purpose. But if it becomes destructive to those ends -- as by arrogating to itself or to its courts the power to defy them -- then the people have the right to alter or abolish it.
What the judge just said was that the Federal courts recognize no duty to even attempt to abide by natural law. That is in itself a more authoritarian position than any court of King George III. Then there are no limits to what a government can rightfully do except what the laws say it can do, laws that the courts have shown themselves free to reinterpret radically from the purposes for which they were written. In this environment, where the government considers itself free not to enforce the law against the powerful and also to rewrite the law by judicial fiat, a guarantee that is only based in positive law is no guarantee at all.
This whole business about which God and whatever is actually to the side of the important question, which is whether the Federal courts are above natural law.
This is going to sound more snarky than I mean it to, but "no kidding". I get the point of this argument - someone wants a trump card over the Constitution, and they want to be able to play it.
The problem is that natural law isn't codified. There's no agreement about its applications. The author wants to align himself with the Declaration because he looking for an appeal to authority.
What the judge just said was that the Federal courts recognize no duty to even attempt to abide by natural law.
Ummm... so what? Once again, why should they? The courts get their authority from the Constitution, which got its authority from a convention formed to draft a governing document for the United States. That convention may (or may not) have considered themselves to have gotten their authority straight from God (and durnitall, you can't prove otherwise!!!! Of course, neither can they prove God granted them that authority - it's the mother of all unfounded and unprovable claims).
Human nature never changes. We can argue about things in the abstract all we want, and that's fun.
But in the real world, we need a practical, codified set of laws and trying to craft a virtual trump card based on an asserted "alignment" with what someone wants me to believe is God's law.... well, that's just plain unworkable.
It must be terribly convenient to believe that one knows God's mind and has been been placed on this earth to edumacate lesser-informed beings of the Divine Plan :p
In the real world, you're either going to have to take up arms against your fellow citizens who dare to doubt whether you really speak for God or know His will, or confine yourself to arguing the point and hope we all fall in line.
I don't get the practical point of this line of reasoning, unless it's to comfort people who feel out of step with the modern world with the thought that they (and they alone) know and understand God's plan for us all.
That's a presumption I devoutly (pun fully intended) wish to be spared from.
Federal law can never be above Natural Law in my own heart and conscience, but in human institutions it certainly can be. I suspect that Cassandra's right that it must be. It's the only way to get groups of people to coalesce around an understanding of what to be physically and materially bound by.
The reason that the natural law tradition should bind the Federal courts is the same reason for any originalist reading of the Constitution -- it's what the people who put it in place intended when they crafted the Constitution, and it's never been formally repealed.
The natural law tradition that Hamilton appealed to isn't vague: he described its conclusions as "written, as with a sun beam, in the whole volume of human nature, by the hand of the divinity itself; and can never be erased or obscured by mortal power.” It's as easy to divine what he thought he was helping to codify as to identify original intent anywhere else.
The courts are still free to stretch 'natural law' quite a ways, but ultimately it's a chain on the courts the same way as any other originalism: they have to give an account of themselves that makes sense in terms of the tradition. We've been 'fundamentally transformed' quite enough without the courts deciding that they no longer even have to explain themselves to us in terms of our natural, and traditional, rights: or give an account of their powers in terms of the natural, and our original, law.
In the real world, you're either going to have to take up arms against your fellow citizens who dare to doubt whether you really speak for God or know His will, or confine yourself to arguing the point and hope we all fall in line.
I suppose. The Founders tried arguing for a long time first, but eventually they had to fight to have their natural rights respected. I don't even think the court is wrong in terms of its result here, but its line of argument is a violation of our entire tradition. Of course, it's just one idiot judge who said this.
Cass, the problem with your argument is that your ideas of a social compact, of being a nation of laws and not men, and your view of how that ought to work are also not found in the words of the Constitution. There is nothing in the Constitution itself that compels us to use your philosophy.
You ask, which God? I ask, which philosophy? Why MUST people use yours instead of any of the others?
Now, one could argue that the Constitution, although it does not use the term "social compact," in fact sets one up. The argument would be that if the structure of the document sets up a de facto social compact, it doesn't actually have to say that it is one in so many words.
That argument cuts both ways, though. We could also argue that the Constitution is so completely embedded in the idea of natural law that the words "natural law" do not need to appear anywhere in it. It would be obvious in such terms as "We the People" and "secure the blessings of liberty," especially in the historical context of that time. Beyond that, we can look to the 9th amendment, which is also an appeal to natural law without using the term.
(What gives the people the right to establish a government? Why do governments need to be concerned about liberty? How can people have rights that are not granted by the government? Natural law, according to Locke.)
The idea of originalism is a good comparison here. When we have questions about how to interpret a law, we look to history to see what legislators meant when they wrote the law. When we do that with the Constitution, we find that the idea of natural law was important to the founders when they established the nation.
Finally, taking natural law out of the mix doesn't solve the problems you claim it does, but rather still leaves us in chaos, asking "Which philosophy? Why?"
And if you propose one, "Why that one and not this other?" Why a social compact and not social justice? Why not a neo-Marxist dialectical understanding? Why not a benevolent oligarchy? If we allow your pet philosophy, why not these others? They have ardent proponents as well. They make better sense of the world for millions, even billions, maybe. Why not their philosophies, especially as they gradually become the majority here, become "We the People"?
...your pet philosophy...
You're making a good argument, Tom, except I'd caution against the "pet" here. Cass has adopted a philosophy for what I think she believes are good reasons, and not as a toy.
The problem is that human authority has no obvious limits that aren't divine. This has been known since Ancient Greece: Plato makes a point of it. Determining what those limits are requires human action too, though. Does it really get us out of the problem?
Cass is taking Protagoras' position. You're taking Socrates'. I've suggested a kind of middle road: yes, humans have to do the work of determining what rights God intended us to have, but the nation has a mode of interpretation at its core. That mode is to apply reason to what we find in nature, and that will tell us what human capacities are. The rights you have are the freedoms you need to be able to develop your capacities and flourish as the kind of being you naturally are. Hamilton knew what he meant when he said that human rights are written in nature as with a bright sunbeam, and we can know what he meant when he said it.
That's our mode of interpretation because it's the one he and his intended in their successful rebellion against the 'Divine Right of Kings' model, and which they set up subsequent governments to make real. This is just one iteration of those governments, directed at the original purpose. It is, really, what we mean when we talk about things like "human rights."
And it's not what the Marxist means, even though he's using the same language. You still look to reason and nature in the same way -- Marx was closer to the Enlightenment than we are -- but you then organize society not to free you to fulfill your capacities but to provide you with the fulfillment of those capacities. It's a very different picture of the business of government, and of what justice entails, coming out of the same basic idea that rights are found in natural capacity. Those ideas turn out to be in tension because now someone else is telling you what you shall do in order to flourish the way that others want you to: it's less individual, less free in the sense of liberty, but more free in the sense that goods and services will be provided to you 'for free.'
But it goes all the way back to Socrates and Protagoras. Instead of setting up human beings as the sole authority, which is very dangerous, we insist on human alignment with an objective standard. Both Marx and we are doing that Socratic thing. This standard is our standard. It's the American standard. If we give it up, we may still call the country "America," but it really won't be anymore.
I didn't mean to belittle Cass or her philosophy and I will take that word back, if I may, and apologize. I know she has very good reasons for it, and I agree with a good part of it myself.
Post a Comment