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America's Counter-Revolution
The Constitution Revisited

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This book challenges the assumption that the Constitution was a landmark in the struggle for liberty. Instead, Sheldon Richman argues, it was the product of a counter-revolution, a setback for the radicalism represented by America’s break with the British empire. Drawing on careful, credible historical scholarship and contemporary political analysis, Richman suggests that this counter-revolution was the work of conservatives who sought a nation of “power, consequence, and grandeur.” America’s Counter-Revolution makes a persuasive case that the Constitution was a victory not for liberty but for the agendas and interests of a militaristic, aristocratic, privilege-seeking ruling class.

Friday, September 11, 2015

TGIF: Kim Davis's Stunt

Kim Davis probably performed a pure stunt, not an act of conscience "under God's authority," when she refused, as an elected county clerk, to issue marriage licenses to same-sex couples -- all couples, actually -- in Rowan County, Kentucky. It might have been a stunt intended to benefit Mike Huckabee's quest for the Republican presidential nomination. He certainly made the most of the opportunity.

Davis defied a federal court order to issue marriage licenses pursuant to the Supreme Court's Obergefell decision, which held that under the 14th Amendment states could not deny same-sex couples legal recognition of their marriages. A federal appellate court and the U.S. Supreme Court refused to stay the order, and when Davis would not comply, she was held in contempt and ordered to jail until she did so.

Of course, locking her in a cage was outrageously wrong and cruel. The ACLU, which apparently represented the plaintiffs, had asked only that she be fined, but the judge reportedly expected that others would pay the fine; so he jailed her instead. (Opportunistically, Huckabee offered to go jail for her, but of course he knew that that could not happen.) Jailing Davis not only violated her rights, it also made her an undeserved hero, allowing Huckabee and others to claim demagogically that she had been imprisoned for her faith. Of course she had not.

A few days later Judge David Bunning  released Davis, but ordered her not to interfere with the issuing of licenses to same-sex couples. Bunning wrote, "If Defendant Davis should interfere in any way with their issuance, that will be considered a violation of this Order and appropriate sanctions will be considered."

Thus Davis did not prevail, regardless of what her supporters believe.

The reason I think Davis performed a stunt not based in conscience is that she was reportedly willing to have same-sex marriage licenses issued by her office as long as her name did not appear on them. As she said on August 31, "To issue a marriage license which conflicts with God's definition of marriage, with my name affixed to the certificate, would violate my conscience." (Aside: does she really think modern marriage is as her god allegedly defined it? Has she read the Bible? Does she have no inkling of how radically marriage has changed over the millennia? It is such ignorance that makes it hard to take her and her ilk seriously.)

But if her objection is merely to having her name on the licenses, what are we to make of her claim of conscience? She is the elected county clerk of a secular regime. Whether her name appears on the licenses or not, the office she was elected to run would be issuing them to same-sex couples. If she construes licenses bearing her name as an endorsement of what she believes is immoral, then she should see licenses that do not bear her name in the same way. As long as she holds that office, anything her bureau does is done in her name. That's how the system works, That's how the system works, and she knows it. So much for her claim that all she wants is a "reasonable accommodation," which religious-freedom laws purport to require.

Had she resigned her office and announced that she wanted no part of a bureau that violated her god's will, her claim of conscience would have been more credible. But the position she actually took smacks of insincerity.

The case has brought out conservative demagogues in droves. Huckabee compared Davis to those who defied the 1857 Dred Scott case, which held that blacks could not be citizens of the United States. What an inversion! It is Davis who refuses to treat same-sex couples as citizens. She is not in the position of someone who refuses an order to commit an injustice, since no injustice is committed by issuing a same-sex marriage license. (If rights violations are incidental to marriage due to other legislation passed, that is true of opposite-sex marriages too. Marriage and the rights violations are separable.) Advocates of liberty and justice would applaud a government functionary who refused to obey an order to violate someone's rights. But that's not Kim Davis. No matter how you slice it, she is no hero.

The conservative outrage (feigned though it probably is) is absurd when you consider what they would be saying if:
  • leftist Christians gave sanctuary to Mexicans without visas and defied ICE and court orders to turn them over for deportation.
  • a Wahhabi Muslim DMV director refused on the basis of Sharia law to issue driver's licenses to women.
  • a Catholic county clerk refused to issue marriage licenses to divorced people. 
This is not a matter of principle. It is naked political opportunism rooted in bigotry.

Davis is not running a private organization. Her office is a government bureau. A private party of course should be legally free to discriminate on any basis -- no matter how odious. (But that doesn't mean he or she should be free of nonviolent consequences -- boycotts, etc. -- imposed by other private parties.) Even one who believes -- as I do -- that government should have no role whatever in marriage, that is no guide to what should happen right now, while government is involved in marriage. Equality under the law is a pillar of classical liberalism/libertarianism. The discretion Davis claimed -- in her attempt to impose her religious beliefs on others from her secular government office -- would have constituted an expansion of government power.

So why do self-proclaimed advocates of limited government support her?

Sheldon Richman keeps the blog "Free Association" and is a senior fellow and chair of the trustees of the Center for a Stateless Society. Become a patron today!


Tom said...


Excellent analysis. What would your response be if Davis had said that she won't issue the licenses because the Supreme Court overstepped their authority and/or that the 14th Amendment was never properly ratified (I'm assuming an intra-Constitutional argument here) and therefore not part of the Constitution?


Tom said...

it's authority, not their authority.

Colombo said...

I don't think that emotions such as fear or hate can be regulated. Only behavior is subject to law, not the content of the mind. But there are some who want to do the impossible, even among libertarians.

Even intolerance has to be tolerated.

I am pretty sure that all the persons important to this story (the men who wanted to marry, the functionary, the Judge, the politicians, and those who roared for and against) were all victims of Gov-schooling.

I don't think it is a good thing to impose "equality under the law" to a people that don't want that. They have to understand by themselves how problematic it is to not have equality under the law. Coercion in the name of equality is still coercion, and coercion only breeds contempt and hate, never tolerance or liberty.

Sheldon Richman said...

Tom, if we're going to talk about illegitimate ratification, we'll call the whole Constitution into question. Hasn't she claimed that the Supreme Court overstepped its authority?

Anonymous said...


Yes. I guess it depends on how far back you want to go. But I was trying to stick to an intra-Constitutional argument. Assuming the Constitution's validity, it's a fair question to ask whether the SC has any authority to do what they did. It's also fair to ask if the amendment process was followed.

Justin Oliver said...

With direction from her legal counsel, I believe she is making the case that since the Supreme Court invalidated the state's definition of marriage, the legislature needs to then provide a definition that complies with the court, including whatever constitutionally approved conditions like waiting periods or prohibitions against marrying known relatives that the legislature would approve. There isn't a severability clause in the law.