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Limits of disobedience

Warning: the post ahead touches upon devil’s advocacy regarding recent gay rights events in San Francisco.

Dan Gillmor wonders whether the Mayor of San Francisco should be ordering city clerks to disobey the law. Larry Lessig chimes in. His argument is that the executive branch has a duty to disobey unconstitutional laws. I find myself pensive. Ashcroft and Bush no doubt feel that it is unconstitutional to force them to provide counsel to Jose Padillo.

I am also not convinced by the McCain-Feingold argument. There is a distinct difference between vetoing an unconstitutional law and refusing to obey one after it has become law.

Perhaps the last paragraph saves the argument:

“One critical caveat: The rule of law requires some coordination. So if a court decides that a law is constitutional, while an executive has the right to disagree, and even push to have the decision changed, it is important that the executive follow the law at least with respect to that case.”

But we do not say “Well, Bush is wrong, but it’s all right for him to make that decision until the courts overrule him.” We say “He should never have done that.”

Elsewhere, there’s the obvious comparison to Roy Moore:

“The fact is, Newsom has a duty to uphold the law, as Moore did as a judge. If he is not willing to do that, he can resign in protest. That would have been the truly principled thing to do. He could have also issued a proclamation that he thinks gay marriage would be a good thing, and his office could even issue a proclamation that he considers all those couples to be married, even if the law doesn’t allow it, and give all those couples copies to put on their walls.”

And yes, Newsom is violating his oath of office. No less so than Roy Moore, unless you think Newsom’s oath is less meaningful than Justice Moore’s. Of course, most of the people using this line of argument didn’t disapprove of what Roy Moore did.

It’s not that I disapprove of what Newsom did, because I don’t. I’m glad he did it. It’s that my approval for Newsom’s actions forces me to reconsider my disapproval for Roy Moore’s actions. I do not have a dispassionate argument for approving of the one while disapproving of the other. Neither does the guy quoted above, unless he was saying that Moore should have resigned.

Schoolhouse Rock had best never return to the airwaves. It would be far too complicated.


  1. Kirby Krueger Kirby Krueger

    I can easily agree that Moore’s civil disobedience about the Ten Commandments’ Monument, and Newson’s civil disobedience about Gay Marriage are similar – both thought that the law that existed was unconstitutional, willfully disregarded it, and prepared to face the consequences.

    I’m less sure that I agree that the only proper way to deal with an unconstitutional law is to sue to end it.

    Consider the anti-Sodomy laws that recently got struck down in Texas. Should homosexuals have refrained from having sex while they waited for a court case to restore that right to them? That’s an implication of a no-civil-disobedience mindset.

    (Of course, one could argue that elected/appointed government officials are held to a higher standard. But that can go both ways – they also have a higher responsibility to use moral judgement. I’m not as confident about this stance, however. But I’m playing Devil’s Advocate too, to a degree – or is it Angel’s Advocate, when you’re countering the Devil’s Advocate side in an issue you both fundamentally agree on?)

    Regardless, it was one of the greatest Valentine’s Day weekends ever – unlike typically, this one really was a high point for love and romance in our nation’s history.

  2. I doubt that most people, at least in the Blogosphere, agreed with what Roy Moore did. Most right-leaning bloggers have a pretty strong libertarian streak, and were making fun of Moore. Remember, all eight other Alabama Supreme Court justices voted to remove him, and I’ve gotta believe that at least a few of those were pretty conservative.

  3. Gavin Newsom’s move in San Francisco to issue same-sex marriage licenses is turning out to be quite interesting – it’s not every day that we get to watch a debate over the constitutionality of a statute driven by the

  4. John — possibly so. But I am not limiting my contemplativeness to the blogosphere, since I’m pretty sure it isn’t a representative sample.

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