AG Holder to State AGs: don’t enforce laws you don’t like

A sign of the anti-nomian spirit of this age?  A sign of what liberals truly think about law and their own power?

From CBS:

Eric Holder: Discriminatory laws don’t need defending

Attorney General Eric Holder says state attorneys general are not obligated to defend laws in their states banning same sex-marriage if they don’t believe that those laws are constitutional. [So, Holder thinks it is okay to violate your oath of office and enforce laws selectively according to your personal beliefs.  That's what Pres. Obama does, and he signs Holder's check.]

Holder made the remarks Tuesday at a winter meeting of the National Association of Attorneys General.

He says decisions not to defend state laws should not be steeped in political disagreements [?!?] and instead “must be reserved only for exceptional circumstances.” But Holder says “we must be suspicious of legal classifications based solely on sexual orientation” and that upholding equal rights is an important principle. [Same-sex stuff is NOT... NOT a civil rights issue!  That is how it is being framed, but it is NOT a civil rights issue.  It is NOT comparable to the civil rights movement based on race from the 50's and 60's.]

“Any decisions – at any level – not to defend individual laws must be exceedingly rare,” Holder said. [Once is too much and once you do that, you do it again... and again...] “They must be reserved only for exceptional circumstances. And they must never stem merely from policy or political disagreements [Do you believe him?  I don't.  No a word.] – hinging instead on firm constitutional grounds. But in general, I believe we must be suspicious of legal classifications based solely on sexual orientation.”

Democratic attorneys general in six states – Virginia, Pennsylvania, California, Illinois, Oregon and Nevada – have declined to defend same-sex marriage bans against lawsuits filed by gay couples.

From the NYT:

As an example, Mr. Holder cited the landmark Brown v. Board of Education case, which forced public school integration in 1954.

“If I were attorney general in Kansas in 1953, I would not have defended a Kansas statute that put in place separate-but-equal facilities,” Mr. Holder said. [It is NOT your call to determine which laws are good laws.  That is the role of the legislature (law makers) and courts (law interpreters.]

The nation’s first black attorney general, Mr. Holder has said he views today’s gay-rights campaigns as a continuation of the civil rights movement that won rights for black Americans in the 1950s and ’60s. He has called gay rights one of “the defining civil rights challenges of our time.”  [We must deny that premise.  It is NOT a civil rights issue.]

How does one impeach an Attorney General?

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About Fr. John Zuhlsdorf

Fr. Z is the guy who runs this blog. o{]:¬)
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44 Responses to AG Holder to State AGs: don’t enforce laws you don’t like

  1. LarryW2LJ says:

    Just goes to show that sins of omission are just as bad as sins of commission.

  2. pseudomodo says:

    This seems to be an extension of another principle pertaining to the public:

    If I don’t like a law – I don’t have to obey it!

  3. MarkJ says:

    If it feels right, do it. Satan in the garden all over again…

  4. Bill F says:

    Here we go…

    Allow me to propose an admittedly unlikely hypothetical. A state legislature passes, over the governor’s veto, a blatantly unconstitutional law (criminalizing all civilian firearm possession, instituting a one-child policy, re-segregating public schools, ). Is the executive branch (which opposed said law) still required to enforce it and to defend it in court?

    Qui bene distinguit, bene docet, and all that. I’m genuinely trying to understand the contours and limits of the good Father’s proposition above, not just trolling.

  5. Facta Non Verba says:

    Eric Holder is the worst attorney general in my lifetime, in my opinion. He seems willing to brazenly use the Department of Justice to persecute (as well as prosecute) critics of the administration (e.g., Dinesh D’Souza) while covering up or whitewashing real areas of corruption (e.g., appointing a maxed out Obama donor as the one to investigate the IRS; invoking exec privilege to refuse to turn over documents on Fast & Furious; failing to provide the legal memos justifying the legal basis for Obama’s delaying or changing Obama Care mandates).

    These actions are in addition to the point you raise about his refusal to enforce laws he disagrees with. The first duty every lawyer is taught in law school is the duty to zealously represent your client. When, as attorney general, you refuse to enforce a law, you are failing in your duty to represent your client, which is the state or in his case, the country. Pathetic and disgusting. It gives every lawyer a bad name.

  6. One of those TNCs says:

    When I served on a jury for a sex offence/kidnapping case, the jurors were admonished not once, but multiple times by the judge in the case, to render a decision based on the legal definition of “kidnapping”, WHETHER OR NOT we believed the law to be wrong. (The definition of what constitutes “kidnapping” is ridiculously broad.)

    If jurors must follow these directives, so must Mr. Holder.

  7. Sword40 says:

    This whole issue of the Obama administration has become so “Orwellian” that its almost unreal.
    I have a daughter-in-law that still believes in Obama and she has two degrees. Makes it tough when she brings my grand children to visit. She definitely knows my political affiliations and they are 180 deg. opposite of hers.

    We tolerate one another. At least until the “stuff hits the fan”.

  8. Sonshine135 says:

    Rule of Law (Republic) is Rule of Law. If you unhinge that, you are on a path to Totalitarianism, Rule by dictate or fiat. You would never want laws against murder not upheld. It is a very slippery and dangerous slope when laws cease to be carried out. Any one okay with this is deluding themselves.

  9. LarryW2LJ says:

    @Sword40

    Same for me and my sister. She went to college – I didn’t (well, sort of, she went to University and I went to two year community college). We have agreed to disagree and not discuss politics. I still gently put the bug in her ear when it comes to religious issues, though.

  10. Sonshine135 says:

    @ BillF:
    A blatantly unconstitutional law would find itself, almost immediately, held in the courts before it ever went into effect, and likely would be overturned. If it is indefensible, it is indefensible. That is checks and balances.

    In this case, the President and the Attorney General are basically saying you can pick and choose established laws that you want to carry out. There is a big difference. Law is law for the precise reason that we do not try people on a whim. If you want the law changed, you have to let the Legislature change it. That is all together fitting and proper in a Republic.

  11. Bev says:

    To be fair:

    - Congress should not pass unconstitutional law.
    - Executive should not enforce unconstitutional law.
    - Courts should not apply unconstitutional law.
    - States should nullify unconstitutional law.

    Holder is in error about the law’s unconstitutionality. Or maybe he knows it is constitutional but is a liar. Who knows. But if the law was that we had to worship Baal and I was the Kansas attorney general, I’d refuse to enforce the law both on the grounds of my Catholic conscience AND because the law would be unconstitutional.

  12. MrTipsNZ says:

    Forgive me, I’m from New Zealand but I think I can safely say this guy Holder statements are just stupid.

    The obvious counter to this is that abortion is not worth defending because its unconstitutional. Try that and see how far his logic goes.

  13. Facta Non Verba says:

    Dear Bev,
    In my opinion, if an attorney general were put into a position of not being able to satisfy the duty to his client (the State of Kansas) because of conscience and because of his opinion of the unconstitutionality of the law, that attorney general should either: (i) resign, or (ii) recuse himself and have one of his deputies enforce the law. But, to flat out refuse to do his duty to his client is reprehensible, and a violation of the oath one takes when one is admitted to the bar. It seems that suspension or disbarment may be in order.

  14. Ben Kenobi says:

    If Holder sees no reason to obey laws that he dislikes, why am I called to obey unconstitutional laws that violate my natural rights?

    Civil disobedience is the correct response to Holder’s violations of the rule of law. Holder attempts, through inaction, to deprive the law of standing, and yet attempts, through action, to enforce certain laws. It simply does not and will not work that way.

    Where does his authority come from? The fact that Obama signed him on, or the fact that we are supposed to obey a lawfully elected and appointed authority? If the former, then those who did not support Obama have no obligation to obey Holder. If the latter, than Holder himself is constrained by the constitution and the natural rights of all.

  15. Legisperitus says:

    This comparison to race and civil rights is the biggest moral swindle of the millennium to date. Sexual deviancy is not race. It is behavior.

  16. Priam1184 says:

    This is the way of things when it comes to laws and constitutions made by men that trust only in men. They all become devoured by fallen man’s lust for power.

  17. Michael_Thoma says:

    This is not the first time an AG has refused to enforce the law “strictly”. For example, look at the disparity in enforcement between those who jump the border from Mexico vs. those who raft from Cuba. From a strict legal point of view, both should be deported. No Executive Branch has enforced this evenly in decades, Democrats or Republicans. Historically, one of the most serious and blatant breaches of Law, Pres. Andrew Jackson and his AG ignored the SC ruling in favor of Cherokee land rights against Georgia. He was not charged with violating the Constitution by anyone, nor was the rule of Law upheld.

  18. Arele says:

    In Oregon, our AG publically declared that she will be MIA when it comes to defending our constitution which is now facing yet another legal challenge concerning same sex marriage. She actually said she, ““will take the position in their summary judgment briefing that the ban cannot withstand a federal constitutional challenge under any standard of review.”

    Even though ten years ago Oregon voted to amend its constitution to define marriage as between one man and one woman, and when challenged by gay rights activists, the Oregon Supreme Court found it to be valid law.

    And yes, her oath of office includes swearing to “uphold the constitution of the United States and the constitution of the State of Oregon, and fulfill the responsibilities of the Attorney General of the State of Oregon to the best of my ability.”

    http://oregoncatalyst.com/26513-oregon-attorney-general-uphold-oregon-constitution.html

    Conservatives would NEVER get away with this. Ever!

  19. Magash says:

    Yes, there is a way to impeach the Attorney General. It is to give control of the Senate to the Republicans and increase the margin of control in the House.
    The House of Representatives have the sole power of impeachment. Once an official is impeached they are tried by the Senate. The only reason the House has not impeached Holder is that Harry Reid would refuse to try him. Changing the makeup of the Senate is the only thing that can actually make calling this corrupt political hack to account for “Fast and Furious” and all of the other nonsense that has happen in the Justice Department in the last six years.
    They’re lucky its not up to me. Half the leaders of this administration right up to the Oval office would be standing in the Senate under impeachment if I had anything to say about it.

  20. RANCHER says:

    Both Obama and Holder have specifically and repeatedly refused to adhere to their oaths of office…..grounds which, in any other time, would have led to Holder’s removal, Obama’s impeachment, and prosecution of both. A gutless and complicit Congress is to blame as is the “what have you done for me lately” mentality of U S voters. Our hope rests in two things: prayers to our Almighty God on behalf of this once blessed nation; the mid term elections.

  21. Cordelio says:

    Father Z, there is a long line of legal opinion coming from both parties that the executive branch can refuse to enforce laws that it deems unconstitutional. This is by no means a position invented by Holder or the Obama administration. Indeed, some legal experts argue that the executive branch must refuse to enforce laws that it deems unconstitutional, and that doing otherwise would violate their duty to defend and uphold the Constitution. Obviously, both the voters and Congress can exercise a check on this decision provided the political will exists to do so.

    There are lots of good reasons to object to Holder’s conduct, for instance: that he is clearly wrong in his belief that the law in question is unconstitutional; or more significantly, that the behavior he is trying to protect violates natural law, whether or not laws against it are unconstitutional. Holder’s statement that an AG is not obliged to enforce a law believed to be unconstitutional is not one of those reasons, though.

  22. Priam1184 says:

    @Magash An what do you think that Republicans would do, given their track record, if they had that power? Do you think that John Boehner and Eric Cantor are going to impeach anybody? And do you think that Mitch McConnell would throw anybody out of office? Really? Or Ted Cruz or Rand Paul for that matter? Really? Put not your trust in princes (or in politicians).

    @RANCHER Really? The mid term elections? Really? We don’t live in ‘any other time,’ we live in the here and now.

    The Cross is the only answer to all of this. The Catholic Church in this country started to forget the theology of the Cross long before the disastrous aftermath of Vatican II and that was the root of all the problems we now face. If we stop worrying about constitutions, court decisions, attorneys general, politicians, and mid term elections and embrace the Cross then the tide will turn. It is a hard road but at the end of it is the only thing that matters.

  23. Mario Bird says:

    Bev and Cordelio hit the nail on the head.

    Facta Non Verba, the oath I took on being admitted to the bar was to uphold the constitution of the state and the United States. It said nothing about enforcing or obeying law no matter what; on the contrary, most jurisdictions specifically provide rules that allow attorneys to argue for an extension, reversal, or modification of existing law.

  24. Chris Garton-Zavesky says:

    Three thoughts:

    1) Isn’t this language

    He says decisions not to defend state laws should not be steeped in political disagreements [?!?] and instead “must be reserved only for exceptional circumstances.”

    much like the language of the Anglican bishops in 1930 at Lambeth Palace? Accordingly, how “exceptional” are the circumstances in which contraception is used now?

    2) How is this different from a call to lawlessness?

    3) On the other hand, does this give us an opening to discuss what makes a law a law, and what, therefore, constitutes a “law” which we are bound to resist? “When Public Men forsake their private consciences ….. they lead…. by a short route to chaos.”

  25. Facta Non Verba says:

    Dear Mario Bird,
    My apologies if I was unclear. I wasn’t arguing that an attorney had a duty to enforce or obey the law, no matter what. My argument is that attorneys have a duty to zealously represent their clients; indeed, in the oath I took, I swore, among other things, to faithfully discharge the duties of an attorney at law, one of which is to the duty to zealously represent your clients. The issue for debate apparently is whether the state who elected the attorney general (or, the parallel argument for the federal side) is the client of the attorney general, and the attorney general would therefore hold the duty to represent the state in laws that were passed in that state. I would think that if the attorney general cannot satisfy that duty, because he doesn’t like the law or doesn’t think it is constitutional, his duty to his client is to either recuse himself or resign.

  26. Uxixu says:

    The oath of the POTUS, and by extension his cabinet officers from Article II, section 3, clause 5 of the US Constitution, is “to take Care that the Laws be faithfully executed.” All of the Devil’s Advocate questions about unjust and immoral laws should take note that these positions are not compulsory. If one cannot carry out their oath in good conscience, they should resign instead of willfully disregarding their oath and duty.

  27. Uxixu says:

    Note the attitude and behavior of Saint Thomas More.

  28. The Masked Chicken says:

    “Indeed, some legal experts argue that the executive branch must refuse to enforce laws that it deems unconstitutional, and that doing otherwise would violate their duty to defend and uphold the Constitution.”

    Those legal experts are, provably, wrong. It might help if they actually offered courses in advanced logic in law schools. Part of the immense failure of the codifications and interpretations of laws is that laws only work if they are semantically integrated. Let me explain: to deem a law unconstitutional is a meta-statement about the law, itself. Nowhere has the executive branch been given the right to execute meta-judgments about laws, in general, otherwise, they could, in principle, simply declare whatever law they don’t like to be unconstitutional. Nowhere in the Constitution does it declare exactly what is the definition of a constitutional law, by the way. It does provide for a body (the Supreme Court) to make meta-statements about the correct interpretation of the Constitution. That authority is not granted to either the legislative or executive branches, otherwise, one would have arguments in infinite regress about meta-meta-meta-interpretations between the different branches.

    Here is the part that most lawyers don’t really either know about or understand: the statement, “This law is constitutional,” is a first-order logic statement and it has been known since the 1930′s that if the statement, “This A is B,” happens to be correct only if A is B in fact, then a paradox occurs. This is called Tarki’s T-theorem, if you want to look it up (by the way, this can be used to prove that the Protestant statement that, “The Bible is the sole rule of faith,” must be wrong, but that is a topic for another time). In other words, if a person or governing body without the proper authorization (we’ll get to that in a moment) says, “This Law is Unconstitutional,” and acts as if it were in fact the case, then a paradox will occur in reasoning, somewhere down the line.

    Paradoxes have no truth-valuation, so, for a non-authorized body to say that such and such a law is unconstitutional, they have, in fact, made a vacuous statement, without any truth content. Using such a statement, one can prove anything.

    The paradox can be resolved if a specific person or body is authorized to provide a valid meta-statement about the original law. Thus, in the case of constitutional laws, the Supreme Court is that authorized body for U. S. law. In theology, the only way to deal with the statement that the Bible is the sole rule of faith is for an authorized body to make a meta-statement about the claim. I have never seem a Protestant realize that the idea of Sola Fide demands the existence of the Catholic Church, since it is the body authorized by Christ to make meta-statements about religious claims. It is ironic, really. Their own false claim implies the existence of the Catholic Church. That is a topic for another day, however.

    The idea that the executive branch can deem a law to be unconstitutional and thereby uphold its duty to the Constitution is making two different claims which are not on the same semantic level. Upholding the Constitution is a ground-level activity. Deeming a law unconstitutional is a meta-level activity. One cannot have the law wrong on a meta-level and uphold the principle of law that allowed its creation at the ground level at the same time, since the two activities contradict each other. A thing cannot be right on one level, but wrong on another. It is not semantically integrated. When the Supreme Court declares a law unconstitutional, it declared all levels of the law unconstitutional because it is authorized to do so as a meta-activity. The Supreme Court does not, properly speaking, defend the Constitution. It defends a specific Constitutional principle that allows the Constitution to exist. I am sorry that law schools teach poor logic in regards to legal theory, but that, simply, is the case.

    Kurt Godel knew this. The famous logician, when he was on the way to being sworn in as a U. S. citizen, rode in a cab with Einstein (who sponsored his citizenship) and, I think, Podolsky. On the way, he explained to Einstein how the Constitution could be overthrown by perfectly legal means. Einstein told him to be quiet about that, but Godel (who developed the famous Incompleteness Theorem in mathematical logic) insisted on explaining it to the judge who did his intake interview (fortunately, the judge zoned out and ignored Godel).

    We don’t exactly know what Godel discovered, but some logicians think it was the problem that the Constitution contains both ground and meta-statements and that by reversing the two levels, one can wreck havoc on the Constitution.

    This is, I submit, exactly what the executive branch is doing. The phrase. “to defend the Constitution,” in terms of logic, is, technically, a vacuous statement, since, it is perfectly acceptable within the Constitution, itself, to destroy the Constitution and thus, paradoxically, to defend the Constitution means to allow its destruction. I know some lawyers might disagree, but I have spent the better part of thirty years researching this and the mathematics is sound. Most people interpret defending the Constitution to mean defending Constitutional principles and that is okay, for the most part, since a vow is interpreted according to the understanding of the one making it, but, in its strictest sense, the actual phrase really has no meaning as a first-order statement. I have spent hours trying to explain this distinction to lawyers, but it is difficult to get many to understand. Whole loyalty oaths have been written this way and they are, strictly speaking, according to the letter of the oath, meaningless.

    Thus, the executive branch, basically, has no idea what they are talking about.

    As far as same-sex marriage being a civil right, let me just disprove that and be done with it.

    1. Civil rights are the rights governing societal interaction within a species.
    2. Civil rights apply to all members of the same species, since all members bear the attributes of the species, in principle, or else they would be something else.
    3. Species inclusion is determined by the ability of two biological entities to reproduce with each other.
    4. Blacks and Whites and Orientals can reproduce with each other, so they are members of the same species.
    5. Per 2, all members of the same species, by inclusion in the species, are granted the rights of the species.
    6. Thus, by 1 and 2, it is a Civil rights matter to recognize that Blacks, Oriental, and Caucasians have the same rights as a species.
    7. With the ground of species inclusion determined, all civil laws must, then, be consistently built-up from it without contradiction – laws for one person in the species generate laws for two-person interaction, which generate laws for group interactions, etc.
    8. Same-sex relationships violate the test for species inclusion, since they cannot reproduce. They are attempting to create a species-within-a-species, but that species violates the species inclusion test, thus is rejected as a valid sub-species. Better said, they are trying to include a false attribute within the species definition (that same-sex couples can reproduce) which is logically inconsistent with the known definition of a species.
    9. If the same-sex relationship subset does not meet the criteria for a biological species, one is not required to grant them the rights of a species.
    10. If they are not a species, then they cannot, properly speaking, form a civil body and no civil rights attach to them, assuming the biconditionality of species inclusion implying civil rights.
    Q.E.D.

    Thus, by Divine Law, Natural Law, and biology (correct reasoning), same-sex relationships simply cannot be a valid object of civil rights.

    I know that there have been many slippery definitions of Civil Rights over the centuries, but they are not correct if they violate the hierarchy of laws: Divine > Natural > Positive or maintain the hierarchy but create contradictions between the levels ( as same-sex relationships do). To do so creates a logical internal contradiction.

    So, the current executive branch is wrong on two counts and has created contradiction after contradiction by its actions.

    I know they will not listen and go on their merry way, but it is a merry way of contradictions that not even Lewis Carroll could dream up.

    The Chicken

    P. S. Sorry about all of that. I must really be in a snit. Am I being uncharitable?

  29. Cordelio says:

    Dear Facta NV,

    The question has been previously raised in exactly the context you suppose – i.e., defending the constitutionality of laws passed by the State – and the answer is no, the attorney general does not have to defend it or resign in favor of someone would would. You may be interested to know that an attorney general’s failure to defend a law is no guarantee that courts won’t uphold its constitutionality, anyway.

    Dear Chris,

    In a very practical, concrete manner, the only thing that prevents society from eventually descending into either lawlessness or tyranny is the Catholic Church.

    Dear Chicken,

    Your “logic” fails if your analogy between the authority of the Catholic Church and the U.S. Supreme Court is an unsound one. It is unsound.

  30. Cordelio says:

    Dear Chicken,

    You may have overlooked the fact that the Constitution doesn’t give the Supreme Court the authority to make meta-statements about the Constitution.

    It would help if logic schools taught logicians the importance of verifying their minor premises.

  31. The Masked Chicken says:

    “Your “logic” fails if your analogy between the authority of the Catholic Church and the U.S. Supreme Court is an unsound one. It is unsound.”

    Perhaps I was not clear. In logic, both the Church and the U. S. Supreme Court are meta- statement makers and, therefore, satisfy Tarski’s Theorem T. The statement is a general statement about first-order logical expressions. I have have no idea what an analogy between the U. S. Supreme Court and the Catholic Church (which, by that, I mean the Vatican, properly, as the legislative and moral pronouncing body) has to do with anything. They are both wigets that satisfy the requirement of the Theorem. You cannot dismiss the argument by claiming some sort of unsound analogy. I have no idea what that means in this case.

    My logic does not fail. Perhaps I have not explained it clearly, but it is bullet-proof, I think. I say that as an expert in this sort of thing, by the way. I wasn’t just making an undergraduate thesis paper statement. This type of logical interaction is crucial in humor and I have studied it for thirty years. I am writing the first papers ever on a precise definition of incongruity for publication. Many of these ideas are drawn from it, but Tarski’s Theorem has been known for 80 years. In fact, I think he used it (or Godel did) to make a proof about the existence of God.

    I was not saying the Catholic Church is like the Supreme Court. I am saying that one aspect of the Vatican and the Supreme Court is the same. That is enough to satisfy the proof. You have offered no explanation why it is not and I cannot see one.

    The Chicken

  32. Kerry says:

    When Pope Benedict XVI, (ret.) addressed the Bundestag in September of 2011, he quoted Saint Augustine “Without justice – what else is the State but a great band of robbers?”

  33. The Masked Chicken says:

    Do you know what a meta-statement is? Perhaps I was using too much short-hand. By meta-statement about the constitutionality of a law, I did not say anything about meta-statements about the constitution, itself, but of the specific law in question, only. Nowhere in my original comment did I say that the SCOTUS made meta-statements about the Constitution. I said:

    “Nowhere has the executive branch been given the right to execute meta-judgments about laws, in general, otherwise, they could, in principle, simply declare whatever law they don’t like to be unconstitutional. Nowhere in the Constitution does it declare exactly what is the definition of a constitutional law, by the way. It does provide for a body (the Supreme Court) to make meta-statements about the correct interpretation of the Constitution.”

    It was reasonable to assume that a reader would interpret this to mean interpretations of the Constitution as it relates to the specific law under consideration, since that was specifically the topic of the paragraph. Making interpretation of the Constitution is not the same thing as making meta-statements about the Constitution. You have to be more precise. Otherwise, you are arguing against a proposition I did not make.

    Once it clears moderation, I have some links to Tarski’s Theorem and Godel’s Constitutional Loophole which should clear things up, if I haven’t been clear enough. I am not going to argue the issue, since the math really is a settled matter (and not by me). I may be expressing it slightly off, since I have a lot of ground to cover and it is hard in a short space not to compress, but the argument is sound.

    The Chicken

  34. The Masked Chicken says:

    I think I see the problem. By, “interpretation of the Constitution.” I think you thought I meant making an interpretation about the actual document, but interpretation is the art of taking a document and understanding what it means, of the contents of the document. Interpretation is not, usually, applied, to a document, in toto, but step-by-step. A language interpretor does not speak all words of a paragraph all at once. He does not comment, usually, on the paragraph, itself, but explains what the paragraph means, sentence by sentence. Thus, I take the phrase, “interpreting the Constitution,” to mean running a law through the interpretation in order to understand it and see if it means what is logically consistent with the original document. The Supreme Court, obviously, is not given the right to actually judge the Constitution. That should have been obvious and I took that as a likely already known background by the reader. I am not writing a technical paper. I am making a comment in a combox. It would take hours to dot every i and t.

    The Chicken

    P. S. As mentioned, earlier, I seem to be a little testy, tonight (no one’s fault), and that is making me argumentative. I apologize for my unseemly behavior, especially to Cordelio. Mine is, hardly, Christian behavior. Rats. I just went to confession, today.

  35. Giuseppe says:

    @Chicken, where in the text of the constitution (or specifically in Article III) does it give the Supreme Court the ability to determine the constitutionality of laws?

    While I am in favor of the reading of Marbury v. Madison, it reads more into the constitution than was written (or implied.)

    Aside from the Article II Presidential Oath, where in the Constitution are the other oaths of office?

  36. Priam1184 says:

    @The Chicken I realize that you are having a bad day, but the Catholic Church is not a wiget (widget?) that satisfies a Theorem. It was that kind of thinking 300 years ago that got us into the mess we are in today…

  37. Mojoron says:

    Is the Supremo’s meta-ing or not? It seems to me they are despite the constitutional requirement they do not. After all, King Barry has meta’d on his own without constitutional basis and all of this meta-ing confuses us non legal parsnips out here.

  38. Cordelio says:

    Dear Chicken,

    You said:

    “Nowhere in the Constitution does it declare exactly what is the definition of a constitutional law, by the way. It does provide for a body (the Supreme Court) to make meta-statements about the correct interpretation of the Constitution.”

    That is a false statement. “It” (i.e., the Constitution) does not provide for the Supreme Court to make meta-statements about the correct interpretation of the Constitution. Or about the consistency of laws with the Constitution (which invariably requires interpreting the Constitution, as well).

    You also said:

    “That authority is not granted to either the legislative or executive branches, otherwise, one would have arguments in infinite regress about meta-meta-meta-interpretations between the different branches.”

    It is not the same as holding two mirrors apart from each other. In the abstract that might happen. In practice it need not – and indeed does not. As I mentioned in my original post, there are checks to the executive deciding to proceed (or not proceed) on the basis of the purported unconstitutionality of a law. Even if infinite regression were the inevitable, real world, result, it would merely point to the absurdity of making a random document the practical basis of government authority. It would not prove that you were correct in your analysis of what the law (little-l) actually requires or does not require when it comes to attorneys general.

    If you are going to be that pretentious, it helps to be a little smarter.

  39. The Cobbler says:

    I have only two thoughts on the matter. One, I can’t remember the last time I saw a so-called “constitutional right” that actually had anything to do with the Constitution; it’s typically code for “I think the spirit of Americanism demands this” with blatantly inappropriate reference to the founding document merely because it’s supposed to be foundational… nevermind paradoxical formulations. Two, leaving aside what we should do about laws that are actually against the constitution, everyone has a duty not to enforce laws that violate natural law — though of course, natural law may not take the position the AG wants on homosexual relations…

    Re. satisfying a theorem, doesn’t that just mean that the Church meets whatever logical criteria are necessary for the statement made by the theorem to apply to the Church? If the Chicken were suggesting the Church is primarily or only a solution to a math problem, that would certainly and obviously be problematic in the extreme; but I’m fairly sure even over the internet I have got to know him well enough to say he wouldn’t mean anything of that sort…

    [commentary on the judiciary, the Constitution and legal/political theory redacted]

  40. The Cobbler says:

    (On reflection — Chicken, forgive me if that was rude or imposing… it was not my intention to speak for you.)

  41. jamie r says:

    If you take an oath to uphold the constitution, and a law is unconstitutional, you would violate your oath by defending the unconstitutional law. In practice, the line between violating your oath by defending an unconstitutional law, and violating your duty to your client, will be difficult to draw, but in principle, Holder is correct.

  42. The Masked Chicken says:

    “Re. satisfying a theorem, doesn’t that just mean that the Church meets whatever logical criteria are necessary for the statement made by the theorem to apply to the Church? If the Chicken were suggesting the Church is primarily or only a solution to a math problem, that would certainly and obviously be problematic in the extreme; but I’m fairly sure even over the internet I have got to know him well enough to say he wouldn’t mean anything of that sort…”

    That is exactly what I meant. I wasn’t talking about the Church per se, anyway, but the idea that sola fide, as expressed by some Protestants satisfies the requirements of the T theorem and is, therefore, paradoxical. This paradox can only be resolved if a meta-statement, a judgment about the idea, is made by a competent authority. That authority is the Church. The Church and the Church alone is the only authority that can state whether the idea that the Bible is the sole rule of Faith is true. It has responded in the negative (with qualifications).

    As for the Constitution issue, I deserved the drubbing I got. I was in such a hurry to talk about one thing (the math) that I forgot to be precise and do due diligence to checking facts about the politics and law. Technically, the Supreme Court is not given the power by the Constitution to declare a law unconstitutional, but judicial review, which is extra-Constitutional, but, perhaps implicit in the document as well as prior history, is all that is needed. The Supreme Court, when it says a law is unconstitutional, is making a meta-statement about the law, regardless of from where the authority to do so is granted. I will do some more thinking about what that means with regards to the status of the people making the law and those which declare it unconstitutional. I haven’t thought as much about that question as I have about Godel’s loophole, so I should have waited to make any comment until both my thinking and expression were clearer.

    Of course, this doesn’t bother me as much as my tone in the earlier posts. I don’t usually write pretentiously nor run roughshod over facts and people. I’ve been a little out of it the last week or so. I did something similar at another blog last week and this puzzled me, after the fact. So, while some of what I wrote is correct, some was jumping the gun in a fashion not normal to me. It crops up every few years or so, I guess. The thing is, I knew I was over-aggressive before I got on the Internet, last night and I was behaving more Neanderthal than human, so I should have taken the night off and got my equilibrium back (I got some good/bad news I was not prepared for the day before).

    Thanks for the come-uppance where needed, although there seems to have been some misunderstanding on some of the topics, as Cobnler pointed out, because I have posted about Tarski and Godel on other blogs before, including some haunted by lawyers and what I said on those occasions did not seem to ignite the firestorm that my comments last night did. I will try to do better and be more careful and charitable in the future,

    The Chicken