Friday, September 11, 2015

Mike Huckabee, Kim Davis, and "The Law of the Land"

Mike Huckabee is making news regarding Kim Davis saying that Dred Scott is still the "law of the land":
Michael Huckabee has permanently lost his mind.  On Michael Medved’s radio program yesterday, Huckabee said the United States Supreme Court’s 1857 ruling in Dred Scott v. Sandford — which held that all blacks, free or enslaved, could not be American citizens — is still the law of the land.
[Huckabee] Michael, the Dred Scott decision of 1857 still remains to this day the law of the land which says that black people aren’t fully human, said Huckabee. Does anybody still follow the Dred Scott Supreme Court decision?
Huckabee states that the U.S. Supreme Court decision in Dred Scott is still the law of the land, yet no one follows it. Thus, Huckabee argues that no one should follow the U.S.  Supreme Court decision saying same-sex marriage is constitutionally mandated.
There is a major problem with your argument Mr. Huckabee. The Dred Scott decision was overturned by the 13th and 14th amendments to the Constitution in 1865 and 1868. Thus, the Dred Scott decision is no longer the law of the land. It was superseded by specific amendments to the Constitution.
If you no longer want same-sex marriage to be constitutional, then you and your bigot friends need to get the votes for a constitutional amendment. 
I think Huckabee's major point is correct, though what he says is slightly misleading.
The 13th and 14th Amendments did nullify parts of the Dred Scott decision, but neither formally struck down Dred Scott (and what Medved says is also misleading because the 13th Amendment alone did not overturn Dred Scott.)  Better to say that neither decision formally struck down Dred Scott, both nullified major parts of Dred Scott, and later court cases nullified other elements of Dred Scott either by saying explicitly or implicitly that the court was wrong.  But his major point is correct: a Constitutional Amendment is only legally necessary when a change to the Constitution is legally necessary not every time the Supreme Court renders an incorrect opinion.  Dred Scott was a wrong opinion.   And that's all a Supreme Court decision is, an opinion about what the Constitution means.  The Court does not make laws.  If the meaning of the 14th Amendment is such that there is a right against every state to same-sex "marriage," then this has always been the law of the land since the creation of 14th Amendment (and states for decades and decades have been in violation of it).  Otherwise, (a) Supreme Court decisions do in fact create laws (which goes beyond the separation of powers which gives the power to create laws to Congress), (b) the meaning of the Constitution is determined by the justices (and as such they are not interpreting), and thus (c) the Constitution could come to mean the very opposite of what it once meant.  But that is absurd since it implies that the U.S. is not and has never been a constitutional democracy, the Constitution itself having no authority!

Having said that, an amendment overturning a wrong ruling might be practically necessary.  Amendments tend to have the effect of putting a serious stamp of authority down that a future Court ruling overturning a previous Court ruling might not.  But as a matter of what is law, it is unnecessary.

Perhaps a better example is Roe vs. Wade.  No one of good sense should think that Roe correctly interpreted the 14th Amendment.  There is no moral duty--no moral reason--to follow the decision of Roe.  There is a practical reason, however: if one does not want to go to jail one has a reason to abide by Roe.

Which brings us to Kim Davis.  Should Kim Davis have stepped down rather than refusing to issue marriage licenses?  Obergefell, like Roe, is an opinion (in this case a 5-4 opinion with 4 justices opining that the majority was dead wrong, and embarrassingly so).  It's an instance of judicial "legislation" from the bench, and a bad interpretation of the 14th Amendment.  So, even if one thinks that one has a moral duty to abide by the Constitution, the Constitution says nothing about marriage.  Obergefell doesn't change that.  So she has no moral duty given the opinion to issue "marriage" licenses.  She has a practical reason to do so: to avoid going to jail.  But apparently that practical reason was not a strong one for her.

None of this means that as a practical matter Republicans should be using the Kim Davis case to push back against the reigning homofascism. Given her history with divorce, she does not seem like the best candidate to use as an example (I make no judgments about her current beliefs about divorce and remarriage.)  One worry is that public backlash might hurt the future Republican nominee in the general election.  It might better to lay low, win the presidency, and change the Court.  After all, stare decisis is not the doctrine that incorrect decisions cannot be rejected by future decisions.

Further reading on the matter.

Your interpretation of the Bible doesn't make it Biblical

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