Saturday, September 5, 2015

Of Courts, County Clerks, Gutless Officials

We have a problem and it is a serious one.  The national government decided to define marriage in a manner contrary to the nature of marriage.  As if that were not bad enough, it is not even the case that all the branches of our three-branch central government did this.  One branch, the Congress, had reaffirmed that marriage is what it is: something that involves one man and one woman.  What makes this situation even worse is that it was five members of the nine-member judicial branch who decided to redefine marriage.

Just to remind us, the crux of what Anthony Kennedy said was this:  “Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right.”  He got to this conclusion first by pointing out that marriage has changed over time.  For example, we generally don’t have arranged marriages and we now allow inter-racial marriages.  So if marriage is changeable, we should be able to change it in any other way some wish, or so claims Kennedy.  Of course, arranged marriages were still marriages, as are inter-racial marriages.  They required a man and a woman.

But the crux of what Kennedy claims is that “the right to marry is a fundamental right inherent in the liberty of the person” so that the Fourteenth Amendment requires that those who want to “marry” the same sex have a “fundamental right to marry.”
The pretense of appealing the Fourteenth Amendment as the grounds for this redefinition are non-sense.  If a state decides to issue certificates of recognition to the owners of horses, no one has been treated “unequally” if that state refuses to issue such a certificate to the owners of dogs.  If it needs stating, this is just because dogs are not horses, no matter how much anyone, including Anthon y Kennedy, wishes they were.  Marriage is what it is.

The fact that Anthony Kennedy and a few of his cohorts decided they do not like the nature of marriage is not the real problem.  Anthony Kennedy thinks all sorts of things that do not comport with reality.  The real problem is that we have forgotten what to do when something like this happens.

Well, not quite everyone.  Because there was one, small, insignificant little county clerk in Rowan County, Kentucky who refused to go along with the great and powerful.  She refused to issue marriage licenses to those who, in fact, cannot be married.  She was doing exactly what the Constitution of Kentucky required her to do.  After all, she is a clerk of Kentucky.

But as Nathaniel Darnell reminds us, even in the case of officials of the United State, “Under Article VI of the Constitution, each official must take an oath to uphold the Constitution, not a judge’s possibly faulty view of the Constitution.  Otherwise, the oaths are effectively to the judiciary.”

But what are almost insignificant little state officials like a county clerk to do when they do their duty rather than the will of Anthony Kennedy?  As Constitutional lawyers Herbert W. Titus and William J. Olson point out:

“In a better time, a President could have explained to the American people why the Fourteenth Amendment has nothing to do with same-sex marriage, and protected her. Failing that, Clerk Davis should have been able to call on her state’s Governor to protect her - to interpose between her and the five Justices.”

Many people have never even heard of this idea, but it is not new.  It goes back at least to the Reformation era when Martin Luther went head-to-head with the Holy Roman Emperor and the Pope.  The Emperor would have executed Luther, but a more local official, the Elector of Saxony, protected Luther by putting the power of his position between Luther and the Emperor.  That is, the Elector of Saxony “interposed” himself between Luther and the Holy Roman Emperor.  The Reformers generally adopted this approach because, rather than being and exercise of anarchy and lawlessness, it was one official correcting another official.

Our system of government was designed with this sort of idea defining its very structure.  As either Hamilton or Madison put it in Federalist No. 51:

“In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.”

In other words, in case you missed it, in order to have many officials at multiple levels who can protect the rights of the people, we (supposedly) have not just a republic divided into somewhat competing branches.  We also have a “compound republic” with “two distinct governments” - the United States government, and the governments of the states.  And like the United States government, the governments of the states have competing departments.  Why have two governments, each with sub-divisions?  One reason is to have a lawful way to control things like an out-of-control Anthony Kennedy.  It is a system designed to be inefficient, in part to provide for the protection of the powerless.

So far the system has not worked in the case of the imprisoned Kentucky county clerk.  Could the system work?  We will never know until the other branches and divisions of our governments are populated with something other than the gutless wonders (like the current governor of Kentucky, just for one example) who now inhabit them.

Monday, March 30, 2015

Thank God for the Anti-Federalists

In the era when the U.S. Constitution was being formulated, there was a rather large and significant group, usually called anti-Federalists, of those who thought it was a bad idea. They are often seen today as an obstacle that had to be overcome to give us “the United States.” I dissent from that view, and instead thank God for the anti-Federalists. They undoubtedly helped mitigate, as least somewhat, the erosion of our liberties today.

To illustrate this, come with me to merry old England. Recently, as reported here:

Mike Overd was convicted under the Public Order Act after he quoted the Bible when preaching about homosexuality in Taunton in June 2014.  The judge at Bristol Crown Court said Overd should not have used the Leviticus 20:13, which uses the word “abomination” . . . Overd has been fined about $200 and is required to pay another $1,300 in costs and compensation to a homosexual man, who was listening to Overd preach.

As far as I can determine, this would not stand in the United States: not yet, at least. Why?

Because of my beloved anti-Federalists. They were opposed to the Constitution in varying degrees, but one thing most of them did agree on was that any constitution needed a “Bill of Rights,” that is, a list of specified areas of liberty where the government to be created under that Constitution may not interfere.

It is not that the Federalists of the time were against liberty. They simply saw no need for a Bill of Rights because they thought they had put together a Constitution of specified, and thus limited, powers for the central government. In other words, according to the Federalists, the Constitution states what the central government can do, and that clearly means it can do no more.

The anti-Federalists resisted rather vigorously, to the point that, to placate them to some degree there was something of a gentlemen’s agreement that if the Constitution were ratified, the first order of business for the new government would be amending said Constitution to add a Bill of Rights.

The British have no Bill of Rights, partly because they have no written constitution. So when the regime there decides that freedom of speech and freedom of religion must bow to social engineering, there is nothing to stand in the way.

Our government has an increasing record of simply ignoring, or creatively reinterpreting so as to eliminate, or Bill of Rights. A couple of them have simply been ignored throughout most of our history. But they have provided a barrier of some kind against things like not being able to cite Lev. 20:13 in public so as not to offend someone.

You can easily imagine that, apart from our Bill of Rights, you would not be able to do all sorts of things that our social engineering state finds objectionable. Our Bill of Rights does not always protect us because, as mentioned before, sometimes it is just ignored.

But even now, and at some key points, our Bill of Rights does keep the hounds of statism in check. And for that you can thank God for the anti-Federalists.

Tuesday, February 24, 2015

State Controlled Education–A Good Idea?

I ran across this interesting headline at National Center for Policy Analysis:

State Controlled Education: Still A Good Idea

The point under the headline is that it would be a good idea for states to control education rather than the Feds.  Maybe – but a question that needs asking is this:  why do most assume that some government must “control” education?

What about recognizing the liberty we all should be free to exercise over our own education?  Why do we think that governments know what is best for us and for our families?

Higher education, lower education – pick any category you like.  Why involve governments in this?

Why should anyone agree that education needs “control” outside of the individuals who want it and others who might provide it?

This is not a new question, but it is a question that is never adequately answered, and cannot be asked too often:  if people are unable to control their own education, how does installing other people to control it for them solve the problem?  Who will control the controllers?

Tuesday, February 3, 2015


Allow me to get myself into serious trouble today.  I stumbled upon an article in RELEVANT today that expresses something that deserves a bit of comment.  The article is “5 Lies American Culture Feeds Us Every Day.”  (I might add that one such lie, not mentioned in the article, is that being “relevant” is important.)

A couple of the five “lies” are good points.  One, “You Can Be Anything You Want to Be” is perhaps something our culture does not tell us as much, or in the way, the author supposes.

But the one I bring to your attention is “Individualism is a Noble Pursuit.”  The author’s explanation of this lie society feeds us is this:

We might not directly say it, but we sometimes believe it: “Who cares if Jesus said stuff about losing your life? Who cares about all of that radical sacrifice stuff? God gave you a brain, He expects you to use it.”  Tragically, Christianity in America often confuses faith in God with just faith in self with some Godly values attached.  Translation: God thinks logically. He would never expect you to make a decision that flies in the face of self-reliance. Don’t sell your house. Don’t give your savings to feed the hungry. Don’t move into the inner city. It is dangerous there.

This kind of thought seems to be the offspring of the “Crazy Love” fad in Christianity.  I was once asked to review that book, and in spite of its popularity, I found it to be full of what I call enthusiastically shallow thinking.  In fact, it is an interesting case of “poisoning the well.”  That is, if you disagree with this approach, you are just exhibiting that kind of individualism that we all know should be condemned.

We need to remember that Jesus sometimes spoke in hyperbole.  He once told us to cut off one of our hands if required.  Should we simply “shut off our brains” as implied in the quotation above and start cutting?  Or should we think about what Jesus no doubt meant by what He said?

I realize that this is one of those uses of the mind that author of the RELEVANT article condemns, but let us suppose that every Christian sold his house and gave away all his savings to feed the hungry.  Let’s suppose these Christians convinced a significant part of the population to become Christians and join them in the selling and giving.

Soon, all these people would join the ranks of the homeless and the hungry.  But not only that, since their savings would no longer be part of the pool of capital that buys the tools that makes the things that people need to exist, at some point there would be no way to make the wealth that everyone is supposed to give away.  Would God simply begin to do a daily “feeding of the five billion” miracle?  Or does God normally care for us via means that we must carefully manage, say, like stewards?

And if the inner city is dangerous but we are required to live there anyway, should we step in front of a bus once in a while too?  For that matter, I don’t remember Jesus or the Apostles even talking about where we should live.  Did not the Apostle Paul say that failure to take care of the needs of your family made you worse than an unbeliever?

That, of course, is thinking.  And the author rejects thinking – except, we must suppose, for his thinking about culture and its five lies.

It is not “faith in God with just faith in self with some Godly values attached” to be both generous and to provide for your family, as the Apostle commands.  And it is not loving to take actions that you know will make you and your family dependent upon others in some attempt to fulfill the fantasies of the “crazy love” misguided way of looking at life.