​

The Americans today, very often with fevered conviction, do things they do not understand for reasons that are misguided, a dreadful combination of misadventures.

By: John Snyder, JD

Allow me to develop some legal reasoning regarding the Little Kentucky Clerk who is defying a Federal Court enjoining her to issue marriage licenses to homosexual couples.

I am at first disposed to think that the clerk should have resigned but I believe she also has a responsibility to represent her electorate and the executive authority of the Governor of Kentucky, presuming that the county clerks in that state come under the executive authority.

Remember she is an elected official, and therefore, cannot be fired.  

Here are my thoughts.

Where is the Governor of Kentucky in all this? Where is the Legislature of Kentucky?

In order to properly express disobedience, the clerk needs to assert and explain her willful refusal to marry homosexual couples by drawing on her duties to the Constitutional structure of the State of Kentucky, which retains a genera or degree of sovereignty within the America union. Without a clear lead from the state which she represents, I suppose she may still resist federal authority, but she is complicating and confusing the issue. (In expressing disobedience to unjust laws, legal questions should remain simple and unambiguous, if they can be structured that way.) It is the state of Kentucky that needs to step up in support of the clerk who still remains under a duty to follow the Constitution of her state and the mandate given to her by the people who elected her. Remember that the Kentucky State Constitution defines marriage as being between one man and one woman.

In the midst of the Reformation, thinking reformers develop a justification for resisting the “governing authorities.” Romans 13 and 1 Peter 2 both clearly state that Christians are obliged to submit to authorities over them. This was, and remains, what is called Protestant Resistance Theory—developed by John Calvin, and Algernon Sydney and the great John Locke. The substance of the idea is that persons appointed or elected to lesser offices also have authority from God to challenge the lawful powers of persons appointed over them (by God). That is why Moses did no wrong by challenging Pharaoh. He was a Prince of Egypt. That is why the Continental Congress could resist the power of England: they were the lawful representative of the colonies.

Now the sad thing is that I have heard the clerk explaining her decision on You-Tube. And tragically her arguments are all wrong.

She says she will not issue the certificates because it is against God’s law. “My conscience will not allow me to issue a license for a same sex couple because I know that God ordained marriage from the very foundation of this world to be between a man and a woman.”

Her argument is doctrinally unchallengeable. It is morally unquestionable. Homosexual marriage is indisputably against God’s law. 

But it misses the point.

The issue here is NOT A THEOLOGICAL QUESTION or even a question of conscience: it is a legal, constitutional, federalism question. I realize most trained attorneys will not see it this way, because attorneys are trained to accept the high court’s decisions as being synonymous with federal law. But I believe we need to revisit the powers of the Federal Courts.

I believe that Clerk Davis’s argument is a disaster simply because it is not material to the real question here. The real question is what civil authority she is under? The only practical question that can be adjudicated turns on that. Is the clerk bound by the Constitution of Kentucky or the decision of the Supreme Court?

 

What would it mean legally to support the theologically valid argument that Clerk Davis is under the duty of conscience? Even a victory in the court for such reasoning would result to the dissolution of practical government. Governments, by their nature, have the power to compel and coerce. Let’s not destroy government in the name of freedom. Freedom is possible only within the lawful, Biblical authority of government. The question is not what she must do, so much as who decides what she must do.  Frankly, I hope Christians will not fall for this one. If everyone at the Post Office may pick and choose who to serve, civil government will cease to function.

The central questions are these: First, is the Clerk under the authority of the Kentucky Constitution (which defines marriage), or is she primarily under the jurisdiction of the federal courts?

Second, is the clerk given powers of discretion under the Kentucky Constitution to administer certificates in Rowan County?  Or again is she bound by exclusively by the legal decisions of the federal courts?

Now I realize that most educated persons are disposed to imagine that in issues of federalism, questions of state power, courts and national government these sticky points were resolved by precedences as old as the Civil War and the Civil Rights Movement. But allow me to challenge some sloppy assumptions here.

Let’s begin by re-reading Article 6 of the US Constitution:

This Constitution and the Laws of the United States which shall be made in Pursuance

             thereof… shall be the highest law of the land; and the judges in every State shall be

      bound thereby, anything in the constitution or the laws of any state to the contrary,

             notwithstanding.

Note that the Constitution says that the judges shall be bound by the laws, not elected clerks (read Kim Davis)…and particularly look at the express language. State judges are not bound by decisions of the courts but by the Constitution of the United States. This may not be the prevailing view, but it is what the text actually says. If there are ambiguities between the United States Constitution and court decisions, the resolution of those questions are exclusively the jurisdiction of the law making power of the Congress, not the court.

In other words, judges both federal and state are bound by court decisions, and county clerks are governed by laws passed by the state authority. That is the way civil government works. Clerks don’t enforce court cases. Judges do not issue licenses. That is called separation of powers. What would a federal government of national and state governments look like if every clerk everywhere were under the direct authority of the Supreme Court? We would no longer have state government.

Of course, I realize the Supreme Court claims to be able to make law, and to require states to conform to those law by deciding what the law means. That is what Marbury v. Madison said, a case decided long ago. Almost all our judicial history follows upon this presumption of judicial review. But admitting this, (which I do not believe we are obliged to accept), at some point the question of what law is, is a political question which cannot be determined satisfactorily without a general consensus of the sovereign People of the United States acting through the institutions of government, particularly state government not judges. When law is merely an assertion of a court, as it was when Taney in the Dred Scott Decision imposed slavery on the whole nation, there remain few remedies within the operations of democracy. The processes of democracy exist in order to find political consensus. Without consensus political question can only find resolution by means of civil disobedience, lawlessness or war. 

It is rationally indefensible to allow a single branch of government, the judiciary, a creature of the Constitution, to claim powers over and beyond the constitution itself. The Federal Courts were created to issue decisions in particular cases and controversies. Read Article III of the Constitution.

The judicial Power shall extend to all Cases, in law and equity, arising under this

Constitution, the Laws of the United States and Treaties made…under their authority.

Hence, the Court’s lawful authority remains only within the decision of a case. Not in the creation of law.

Think of three co-equal branches of government as being like, rock, paper, and scissors. I can understand how a court can block an executive action or a piece of legislation—I understand how an executive can block legislation—or how a legislature may override an executive action  and throw out bad law by correcting it with duly enacted laws. But how can a judicial decision have power to neutralize the creation of legislation passed by a Congress and signed by an Executive? Apparently the judiciary’s scissors cut not just paper but rock also.

That is politically and constitutionally incoherent.  

The court has improperly carved out a rule that obliterates all other rules. Judicial power as presently accepted simply negates all Constitutional functions defined in the Highest Law of the Land, the Constitution, and sweeps aside any clear meaning to the reserved powers of the state governments. The Federal Courts have obliterated federalism.

The Tenth Amendment states,

     The powers not delegated to the United States by the Constitution, nor prohibited by it to

     the States, are reserved to the States respectively, or to the people.

Since the Constitution reserves the power of defining marriage to the states, from whence cometh the power of the courts to enter a jurisdiction that is not theirs? 

Even more to the point, judicial authority has come to mean the power to directly negate the will of the people. Remember that the true and only sovereign in the American Republic is the People. As sovereign, all laws are creatures of the people, not the courts. Let me state plainly, the courts cannot really have power to negate the will of the people.  That would make the courts sovereign. Is that a coherent view of constitutionalism?

It is executive power, separate from legislative power that is best suited to affect a check upon unbridled and vague meanings in texts and laws. Remember that the courts evolved from the power of kings. Hence they are called courts. The king is not subject to the courts, the courts are subject to the king. Hence the people have and must retain finally word over the meaning of laws. And the people speak through their representatives. When there are conflicts in the law, the final exegetical determinations must properly be reserved to legislatures acting in accordance to the will of the electorate, not the courts. As sovereignty in England migrated from the king (Charles I), to the House of Commons during the Puritan Revolution, the courts became creatures of the legislature and ruled in accordance to words written by the Parliament, not edicts of monarchs.

What I am saying is this: the event in Kentucky is way bigger than we want to face. Hence we pretend as if this is a question of conscience. It is way, way bigger than that. The issue is so big that it scares us. We want to find resolution within established legal norms, but I believe, and I think a powerful sub-current in our country also believes that as a nation of free people we can no longer accept this incoherent view of massive federal judicial power.

We are talking about a clerk. We should be talking about the proper operations of federal courts within the structure of federalism.

To support my position I am reminded of the very first line of our Constitution:

All legislative power herein granted shall be vested in a Congress of the United States.

Absorb these words.

This means that the Supreme Court and the decisions made thereby cannot have the force or same meaning as law and legislation. Court decisions cannot be legislation properly understood. Court decision may have properties that are similar, but they cannot be coterminous, they cannot be laws in substance or form in the same way that Congress and the President together make laws. Otherwise, the judiciary as one branch of government has more power than the other two branches operating together!

Even if we acknowledge that the courts retain a power of review that results in something akin to law-making power, simple textual coherence requires us to explore the necessary and substantive difference between legislation and court decisions.

Look again at the first line of the US Constitution. Notice the words all and vested, in Article I.

That means the power of law-making is a vested power, not a presumed power or a logically derivative power, but something specifically given by the people. Judicial legislation can be argued as an implied power of legal review but it cannot be, in any coherent argument, a vested power. And more, since all legislative power resides in Congress, the courts cannot have even a little bit of it. Even by default. In other words, the people did not give that power to the courts.

The most powerful expression of government authority derives from the express language of the Constitution. Implied powers cannot negate express powers. I think that is necessary hermeneutically. It almost certainly is a canon of legal interpretation.

So do reserved state powers trump implied federal powers? If there is a problem, the answer is to amend the Constitution. The answer is not to convert a judicial decision into the supreme law of the land and then impose it by fiat on the sovereign people of Kentucky.

The Court itself explored this idea in regard to the executive power in the Youngstown Case In that case President Truman attempted to use implied executive power to do something that was neither supported by the Constitution nor demonstrated in historical precedence. (He attempted to seize a steel mill during the Korean War.)

I realize I am applying this case outside ordinary application but there are important exegetical and jurisdictional questions here that are analogous. In short, the court held that there were no explicit statutes which provided for such executive action and that the Congress had refused to authorize such power. In order for the executive to assert such authority, such power would have to be expressly stated in the Constitution or implied by some historical example.

Forgive me, but why do these principles apply only presidents? Should they not apply also to the courts?

What, therefore, is the proper reach of a federal court decision? What are the limits, if any, of appellate review? All just power must have limits. So what are the limits of this judicial power as it is presently understood? Do Federal Courts really have the unrestrained power to nullify state constitutions? And if they do, doesn’t that power tread into areas that are larger than a court decision should pretend to resolve? Are not the courts obliged to show prudential restraints when intruding into democratic institutions, of the which, courts themselves, derive power?

Beware: court decisions that cavalierly dismiss the democratic process and the complexities of federalism threaten the very ordered liberty upon which the system itself rests.

I would suggest that a beginning point of any protest against Federal judicial over-reach is to insist that there is some important difference between the Constitution and a Federal Court Case. Of course, there must be. If we are unsure or ambiguous on this point, as we have allowed ourselves to be up until now, we really are no longer a nation of laws but nine egos parading opinions at the Supreme Court Building.

A judicial decision cannot properly be called a law. And further note that there are no laws, as far as I know, that have been passed by Congress defining what marriage is. If there are, they support the clerk’s position, not the court’s.

The question of what the little clerk should do, therefore, is really a big political-constitutional question. It is not a mere legal question that can be determined by judicial fiat, or for that matter, the willful action of a conscientious county clerk. To make it an issue of Christian conscience is a cowardly and pitiful understatement of protest. If the court can destroy a constitution, what gives anyone the idea that conscience is a haven from the despotism of willful courts?

This issue requires a constitutional amendment or at least a nearly universal understanding among the states—we are a Union, remember—as to how the states and people must respond when judges presume to act like emperors.  

 The clerk remains under a duty to support the laws of Kentucky— not the federal court decision—she is under a duty both to obey the laws of her state and the United States. A simple assertion by an over-reaching judge cannot simply obliterate the Kentucky State Constitution or dismiss the clerk’s oaths to conform to the laws of her state. Until the state redefines marriage in conformity with a federal court decision, the clerk is obliged to obey the state constitution. That is the proper ways a legal change in Kentucky should progress. Otherwise Americans are not governed by laws but by coercion and, particularly, injunction. Is the office of clerk a creature of the courts or is the office of clerk a creature of the people of Kentucky defining its duties and powers through the words of the Constitution of the State?

And further, at risk of over-explaining, the federal courts have created no law to which the clerk is obliged to genuflect. A law is a discrete thing, written by a proper legislature; a court decision is something else. The legal challenge is with the state’s executive and legislature, not with the will of the little clerk. But I suppose an injunction against the State, or the Governor, or the Kentucky Legislature would be too politically outrageous.

This is what the little inarticulate clerk needs to hire an attorney to state the following:

The Constitution of Kentucky defines marriage. There are no federal law that defines marriage. I am an officer of the State of Kentucky and not the United States. I did, in fact pledge to support and defend the Constitution of the United States and am pleased to tell you that I have read it. I made a similar pledge to support the Kentucky Constitution. And being literate I find no definition of marriage in the US Constitution or in the duly enacted laws of the United State that I am obliged to respect having taken an oath to support that instrument. I have never taken an oath to support the judicial decisions of the Supreme Court any more than I have taken an oath to do the bidding of the President of the United States or the Congress in Washington. I support and defend the Constitution. I point out to those less informed than myself, I am not a judge. I am a clerk. My boss is the Governor of Kentucky. And the people of Rowan County. In addition I do not and cannot recognize the Federal Courts as a proper institution for requiring any action contrary to the express language found in the laws of Kentucky. My pledge is first to the express language of the Kentucky Constitution. Under no construction am I obligated to follow the dictates of men. In my country, we are ruled by laws and not opinions. I am under no legal requirement to bring my conscience into conformity to decisions or legal decision that clearly are neither constitutional, under the laws of Kentucky or the United States.

Federal Court decisions do not have the same power as do express state laws or the Constitution of the United States. If state laws are offensive to the US Constitution, then any directed injunction should properly and boldly be served on the Governor or Legislature and/or the people of the state of Kentucky. I do not believe that any court has such magisterial power. Therefore, I am obliged to support the laws of Kentucky and the US Constitution. Under no legal or logical construction can my obligations to these instruments and to the people of Kentucky be usurped by a presumed power asserted by a single branch of the federal government, certainly, not the unelected Supreme Court. There is a difference here that is too obvious to explain.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~