Wednesday, March 20, 2013

Justification of Nullification

In a previous post I kind of advocated for court remedies by law enforcement officials when perceived constitutional conflicts arise between jurisdictions in our federal system. But reading Adam Liptak's article yesterday I realized that sometimes using the courts to resolve constitutional conflicts may have to be accompanied by civil disobedience of those we elect to enforce laws. Probably the most dramatic example was the debate over slavery preceding the Civil War. Many law makers from the north felt justified both morally and legally to defy laws protecting slavery.

Now we come to the issue of gay marriage which will be heard before the Supreme Court on March 26. [Just read that the court will release same-day audio of this argument.] The civil disobedience was initiated by the city attorney's office in San Francisco in the face of California's voter approval of Proposition 8 which banned same-sex marriage after state courts and a lower federal court judge ruled a previous ban [Proposition 22] to be unconstitutional [The court will also be deciding on a federal law known as Defense of Marriage Act.] In reporter Liptak's referenced article I e-mailed him regarding this statement: "… the plaintiffs and defendants in both cases agree that the laws under review are unconstitutional … ". No response by reporter Liptak and I can't make heads are tails of the discussion online. So I can only assume the city attorney for San Francisco is breaking the law by not enforcing  the  unconsitutional Proposition 8?

Official nullification by government officials is a very dangerous thing, especially by law enforcement personnel. A famous case [Worcester v. Georgia] involves President Jackson and Chief Justice John Marshall. Marshall's court ruled against a case that Jackson strongly supported. He refused to obey the court and famously said: "John Marshall has made his decision; now let him enforce it!" This is the 'still point' in our form of government. The courts have no police force. The laws we live by are balanced on the knife edge of voluntary compliance and enforcement by other officials who do have police forces. 

So even though reporter Liptak won't answer me I will assume that the Supreme Court has granted certiorari [listen to arguments] in the hope that with their decision they are not told to enforce it.


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