More than sixty prominent legal scholars are out with a statement saying the Supreme Courtâ€™s Obergefell decision â€œcannot be taken to have settled the law of the land.â€ Therefore the scholars are calling upon federal and state office holders, along with regular citizens, to act as if the decision is invalid.
The scholars write that the bare-majority decision on gay marriage lacks â€œanything remotely resembling a warrant in the text, logic, structure, or original understanding of the Constitution.â€ The ruling â€œmust be judged anti-constitutional and illegitimate,â€ they say.
Signers of what some will consider a controversial proposition include Professor Robert George of Princeton University, who said, â€œWe stand with James Madison and Abraham Lincoln in recognizing that the Constitution is not whatever a majority of Supreme Court justices say it is. We remind all officeholders in the United States that they are pledged to uphold the Constitution of the United States, not the will of five members of the Supreme Court.â€
Specifically, the signers are telling office-holders to, â€œrefuse to accept Obergefell as binding precedent for all but the specific plaintiffs in that case, recognize the authority of states to define marriage, and the right of federal and state officeholders to act in accordance with those definitions.â€
The letter urges government officials to, â€œpledge full and mutual legal and political assistance to anyone who refuses to follow Obergefell for constitutionally protected reasons, and to open forthwith a broad and honest conversation on the means by which Americans may constitutionally resist and overturn the judicial usurpations evident in Obergefell.â€
They remind office-holders that they pledge to uphold the Constitution of the United States, â€œnot the will of five members of the Supreme Court.â€
They cite Presidents Madison and Lincoln as justification for their position. President Lincoln acted as if the Dred Scott decision â€” that neither slaves nor free blacks could be considered American citizens and that the federal government had not right to regulate slavery in the federal territories â€” was illegitimate and he refused to recognize that it effected anyone in the country except the immediate plaintiffs.
The letter was signed by scholars from a wide range of academic institutions including Kansas State, Boston College Law School, Boston University, Michigan State University, Texas Tech, University of Oxford, Villanova, Vanderbilt, Amherst, Notre Dame, Catholic University of America and many others.
Barack Obama, Dawn Johnson, Division of Powers, Justice Department, Obama Appointments, Office of Legal Counsel
The Wall Street Journal comments with astonishment on Obama’s choice of Dawn Johnsen, leading opponent of the Bush Administration’s defense of executive branch authority, as head of the Justice Department’s Office of Legal Counsel, which interprets the law for his entire administration.
One of the OLC’s main duties is to defend the Presidency against the inevitable encroachment of the judiciary and Congress on Constitutional authority, executive privilege, war powers, and so forth. Ms. Johnsen knows this, or should, having served as acting OLC head in the Clinton Administration between 1997 and 1998. The office has since become all the more central in a war on terror that has been “strangled by law,” to quote Jack Goldsmith, a former Bush OLC chief.
Yet Ms. Johnsen seems to think her job isn’t to defend the Presidency but to tie it down with even more legal ropes. She has written that “an essential source of constraint is often underappreciated and underestimated: legal advisors within the executive branch.” And in touting her qualifications, the Obama transition cited her recent law review articles “What’s a President to Do?: Interpreting the Constitution in the Wake of the Bush Administration’s Abuses”; and “Faithfully Executing the Laws: Internal Legal Constraints on Executive Power.”
In other words, Mr. Obama has nominated as his main executive branch lawyer someone who believes in diminishing the powers of the executive branch. This is akin to naming a conscientious objector as the head of the armed forces, or hiring your wife’s divorce lawyer to handle your side of the settlement too.