See other issues.
When considering the position of Kim Davis, the County Clerk in Kentucky who stopped issuing marriage licenses in response to the Supreme Court of the United States's decision in the Obergefell case, most people make a mistake in comparing Kim's responsibilities as an elected official with a typical corporate job. This is just one example out of many where our current enslavement to corporations warps our thinking. (See Minimum Wage for more on that topic.) In a position which we would typically think of as a "job", a person has a defined responsibility to a "boss", who pays you in exchange for meeting the demands of your somewhat loosely defined position.
Kim Davis does not have a job, she has an office which she was elected into. She has authority which the people have delegated to her, and which is legislatively defined for her office. Since she has no boss, apart from the people who elected her, she, as with all elected officials, has a a greater amount of liberty in how she exercises her discretion than someone in your typical corporate job. Unless there is an impeachment process defined, or the people are stirred up to issue a recall, her position is very secure until the next election.
We typically would think that it is Kim Davis's job to issue marriage licenses, but if this was so, then there would be no need for Kim Davis. We could have a computer do the job, or we could allow people to license their own marriages. The only reason to allow a person like Kim Davis to authorize marriages is to allow the human factor to be introduced. So her job is not, among other things, to issue marriage licenses, but to exercise her discretion in wielding the authority to issue marriage licenses; putatively, to represent the people in exercising her discretion. (This representation is, admittedly, never perfect.)
Kim Davis is not actually particularly unique in this exercise of her discretion.
A Few Related Examples
In California, they mayor of San Francisco started handing out marriage licenses to same-sex couples during a period of time when it was clearly illegal. The city finally stopped when the courts ordered it. But it was clearly against the law even before then, it just wasn't a crime, and neither would it have been if he hadn't backed down. Most likely he was trying to give the courts an excuse to review the issue and declare the existing laws null and void.
Also in California, when Proposition 8 was being challenged in court, it was the clear responsibility of the Attorney General to defend the state’s legislation in court, representing the people who elected him, and had voted to pass the law. Nevertheless, he chose not to do so, which threw the whole suit into chaos, with each court all the way up to the supreme court stopping to ask “are the people really allowed to defend their own law in lieu of the state if the state declines to do so?” Finally this very issue led to the ambiguous demise of Proposition 8 before the Supreme Court of the United States.
I watched all of this with great frustration, and at first, I was inclined to share the opinion many now express, but upon reflection, it was clear that the nature of their positions is a position in which authority is granted to them, and that unless laws are put in place punishing them for exercising, or failing to exercise their authority in certain ways, then the rest is up to their discretion. (And even if such laws do exist, the people who execute or judge such laws might exercise their discretion as well.) It is the role of the voters to anchor their representatives' actions to their will.
The Need for Kim Davis
Many have argued that people who are elected need to follow the law or step down. I would argue that such a system as that would not solve the real problem, and would only accelerate our drift towards tyranny. I would also suggest that her defiance of the court, despite all of the negative examples I have given, is exactly what we need more of.
The reason for this is, rather vaguely, that our country has become unmoored. To be more specific, the foundational principles that we should be concerned with are: First, that the government should be in the business of protecting our life, liberty, and property rights. Second, that the authority of the government should be delegated by the people. This is subtly, but significantly, different from the all too common “derived from the consent of the governed”. Laws then, as tools, should serve the people (by protecting life, liberty, and property), rather than people serving the laws.
One significant example of how unhinged we have become, comes from the city of Bell, California, not far from my former stomping grounds, where it was discovered that the city officials were voting for themselves huge salaries, and helping to fund their gluttony by raising fines and setting fine quotas. Now, Bell officials were caught, because, in their gluttonous excess, they committed crimes. However, I can tell you from experience, that they are only an extreme example of a system that ravages the Los Angeles County, and, to a lesser extent, is common throughout the United States of America. The job of protecting life, liberty, and property is often set aside, and officials enrich themselves at the expense of the poor. They wield “the law” as a weapon against the poor.
What do we do in response to such abuse of the law? The common response is to say “there should be a(nother) law against that.” Well, in the case of the city officials in Bell, there already was a law against that, but what good did it do? Laws are useful to incentivize, and to apply remedy after-the-fact, but they do not, in fact, offer much protection, especially when it is clear that the law itself can’t be trusted. Another “legitimate” (ie. unambiguously legal) tool to use against such abuse of power, is the vote. Citizens can, and should, refuse to elect such individuals. However, people are notoriously sheepish, and I like to imagine that is a problem that is greater today than ever before. (It is not, however, a new problem.) Corruption in the city of Bell was not a new problem, and the voters completely failed to root it out.
This is very typical, and leaves the believers in law, in spite of law’s obvious ineptitude - I call them the worshippers of the law, who appeal to law for ultimate moral authority, even though the law is the work of men’s hands, and has no more power than a dumb idol once it is cast - it leaves these believers in the law to appeal for more law, as if another statue cast by greedy silversmiths could protect them from the greed of the silversmiths. It is necessary to see these idols as dumb, and to recognize our responsibility in crafting laws to serve us rather than to be served.
What is left to us then, is to reject bad law. We need to reach down to a more fundamental definition of right and wrong and overthrow laws which have been set up to undermine our life, liberty, and property, or to protect government officials when they abuse the authority we delegate to them. To that end, there are still legitimate means for correcting problems. In California, voters have recourse to the initiative process. They can make noise, and petition.
Juries were set up specifically for the purpose of making the law answerable to the people. Citizens were set up to represent the interests of citizens, while a judge was set up to represent the interests of the government, and each had an independent veto power for each application of criminal law. However, this is very little recognized anymore. Nowadays, we are lied to. We are told that juries exist to “find facts”, then, once we have been lied to and are led to rubber-stamp a conviction under a bad law on the basis of the facts in the light of the bad law, the judge washes his hands of the matter. Effectively, the judges now use the jury to indemnify themselves against possible injustices they might perpetrate. In California, which has the worst record I am aware of for abusing the jury, jurors are instructed of their fact-finding mission, and the judge tells them what they are supposed to think the law means, and exactly what facts they are to determine to find a verdict of guilty or not guilty. Then, if any one of the jurors is not deceived and decides to acquit because they disagree with the law, fellow jurors can report him to the judge, and he will be dismissed. Considering the history of the jury, this makes a dangerous mockery of a jury indeed. I would go so far as to say that California has only a remnant of a real jury system. Still, as it is, it is better than nothing, and there have certainly been worse abuses of the jury system under which the jury still managed to be of value.
That brings me to the legal grey area covering the actions of people such as Kim Davis. I call it a grey area, because her actions are technically against the dictates of the law, and yet, she has committed no crime. More to the point, her actions are against the dictates of the Supreme Court, which passed no law, but gave their interpretation of the Constitution. Therefore, according to their “opinion”, her actions are “unconstitutional”. But then, nowadays, it has become commonplace for the opinions of the Supreme Court to have no basis on the Constitution. We have come to think that because the Supreme Court said so, therefore, it is. The Supreme Court says the law is unconstitutional, and generally they go unchallenged, and the law is taken out of the books, and nothing is ever printed about the legislature having obeyed the court order by taking the law out of the books, the law just disappears. Judges have openly admitted, on occasion, that their ruling had no basis on the Constitution.
The truth of the matter is, that the Supreme Court has the power of exercising their discretion as much as any official does, and they often do, even in belligerence with respect to the Constitution. Their words have power because they are the court of last authority, and because lower judges hate to be reversed. They maintain power because the legislature fails to exercise its discretion to impeach. The legislature fails to exercise their authority to impeach because we worship the judges and take their word to be higher law even than the law itself. Kim Davis exercised her discretion to protest the abuse of discretion (judged by the Constitution, and their lack of mooring to it in their decision) perpetrated by the Supreme Court. A judge then ordered her jailed despite the lack of a crime, exercising his discretion in violation of the Constitution. The executive authority known as the police complied, despite the lack of Constitutional basis for his order, and thus became complicit in attacking the Constitution (though they knew not what they did, most likely).
Who then, here, is friend to the Constitution? Who here is failing to protect the Constitution and the people who depend upon its promises? I think anyone would have a difficult time, once they dig into the details, finding that Kim Davis is in violation. So, she is violating no law. She is not violating the Constitution. She is in open defiance of those who do violate the Constitution, and yet we are blinded to it because we have let judges become our gods, or prophets, and we join in attacking Kim Davis, who is one of the few defenders we have in public office.
If you think that her exercise of discretion is morally wrong, that is one thing, but if it is morally wrong, it is not because it is illegal, and certainly not because it is criminal. It is not because she is failing to do her job, or ignoring the Constitution. If she is morally wrong, it is morally wrong for an entirely different reason, but I lament that the people who think that what she does is morally right, join in attacking her because they have joined the cult of the judiciary and become idolators.
One very extreme example often comes to mind when I consider, and then reject, the argument that a government official is required to abstain from letting their personal convictions disrupt the work of government. That example is the Holocaust. It is a time that is very distasteful because of its horror, but it is an event that is being played out all over again in the Middle East. One of the most striking features of the Holocaust is how decent people were convinced to lay their morals at the door and become complicit in the abuses of that time and place. It is ironic to me that while our society collectively rejects the excuse of “I was just following orders”, and we reject this excuse correctly, we, at the same time, justify them when we claim that an official's duty is to simply do as they’re told, or excuse themselves so that they can get out of the way, no matter what their consciences are telling them. A conscience can be an unpredictable thing, but it is precisely this, and only this, unpredictable bit of humanity, that can save us from devastation and tyranny.
- Mike Maharrey, "Judicial Supremacy: How Did this Far-Fetched Claim Originate?", Tenth Amendment Center, 7 Jul 2014