Judicial authority

I'm going to comment on this post:

http://turretinfan.blogspot.com/2015/09/obergefell-is-law.html

I don't know with whom TFan is shadowboxing. Perhaps it is, in part, Facebook friends. I'd just say that my own position is more qualified than what he's attacking in his post. 

Some dear friends have been going around claiming that Obergefell(fn1) isn't the law of the land. These dear friends are wrong. 

But the Constitution vests all legislative authority in the Congress! 

Yes all federal legislative authority is Congressional, but legislation isn't the only kind of law. There are also laws that come from the executive branch (e.g. regulations) and laws that come from the judicial branch (e.g. judicial precedent). There are even treaties, which the President enters into with the consent of the Senate.

That's a legitimate distinction. However:

i) As he admits, treaties only have the force of law if they are ratified by the legislative branch. So that's not a real counterexample.

ii) Whether executive agency regulations should have the force of law is hardly indisputable. To my knowledge, that's not something the Founding Fathers envisioned. You've had a profusion of executive agencies during the 20C. Some were created by Congress, some were created directly by Presidential fiat. We should oppose the autocratic nature of these executive agencies. It subverts the Constitutional system of checks and balances. 

iii) Words have connotations as well as denotations. There's a reason proponents of homosexual marriage call Obergefell "the law of the land" rather than "a judicial opinion." The former sounds far more impressive than the latter. Even if these are synonymous, they have very different connotations. 

iv) Likewise, it's not just the meaning of the noun, but the meaning of the adjective, which modifies the noun, that's significant. You can speak of Constitutional law, statutory law, and common law. They may all be "law," but the adjective qualifies the nature of the "law" in question.

But the Founders never intended for judicial precedent to be law! 

Actually, the founders accepted the idea of judicial precedent as law. They all had as their framework the English "common law" system, in which judicial precedent was treated as law. The Constitution doesn't oppose this framework. In the historical context in which the Constitution was written, it was assumed that judicial precedent would be treated as law.

But that camouflages the real issue. What is the basis of judicial precedent? What's the standard of comparison? It's supposed to be judicial interpretations of Constitutional law or statutory law (or treaties). So it's not an independent lawmaking body. Rather, the judicial interpretation is dependent on preexisting laws, supplied by the legislative branch of the Constitution itself. 

There is, moreover, a fundamental difference between a good faith interpretation of a legal text, and using a legal text as a pretext to invent a new Constitutional right that has no basis in the wording, logic, or intent of the text. 

But this is Legislating from the Bench! 

What you really mean is, you don't agree with the justices' decision. You think they were wrong to conclude as they did. That doesn't make this legislation from the bench. It's just judicial precedent.

That's just a cheap shot. 

But Kentucky's law is different 

When Federal law and Kentucky state law come into conflict, Federal law wins (US Constitution, Article VI).

i) That's true up to a point. However, that depends on overlapping jurisdiction. Under our system of Federalism, the jurisdiction of the Federal gov't is not unlimited.

ii) Moreover, state marriage bans did not conflict with any Federal law. There was no Federal statute mandating the right of homosexuals to marry. 

iii) I also notice that TFan skirts the issue of whether judicial review includes the right of the Federal judiciary to strike down acts of Congress. 

But Article VI doesn't mention judicial precedent! 

Even if that mattered, it mentions the US Constitution and - according to Obergefell - the US Constitution conflicts with some state laws.

But that begs the very question at issue. This isn't about the Constitution, but about judicial supremacy. So that's a bait-n-switch. How much authority does the judiciary have under our Constitutional system of gov't? 

A consistent motif of the book is the recurrent myth of “judicial supremacy” in constitutional interpretation — a view that most textbook accounts (and law school casebook accounts) wrongly ascribe to the framing generation and to Marbury v. Madison. The power of constitutional interpretation, we observe at various points in the book, is not exclusively vested in the courts, with all other branches and officers of government bound to accept, unthinkingly and reflexively, whatever the courts decide. Rather, the power of constitutional interpretation is a divided, shared power incident to the functions of each of the branches of the national government — and to instruments of state governments, and of juries, as well — with none of these actors literally bound by the views of any of the others. 

This is not an especially shocking position. “Departmentalism” in constitutional interpretation is familiar to legal scholars. (We never use that term in the book; we insist on avoiding legal and academic jargon wherever possible.) We go further than most, however, in explaining its implications across a range of situations. 

For example, we offer a brief theoretical and practical defense of the propriety of executive and congressional non-acquiescence in judicial precedent that, in the independent judgment of these other actors, conflicts with the Constitution.  We explain and defend Congress’s prohibition of slavery in national territories notwithstanding the contrary decision in Dred Scott and Lincoln’s non-enforcement of Chief Justice Taney’s constitutional judgment and order in Ex parte Merryman. Further, we take seriously (at least as an original matter) the idea that Congress might legitimately use the impeachment power to remove executive and judicial officers for their perceived flagrant departures from the Constitution.  We also discuss seriously the theoretical arguments of Madison, Jefferson, and Calhoun for the propriety of state “interposition” and “nullification” of federal actions on constitutional grounds — and also discuss the limitations of and errors in their approaches.  And we also embrace the propriety of independent jury interpretation of the Constitution. 

In setting forth the Constitution’s familiar separation and division of powers among independent branches, we note “the checking power of the courts — and the checks on the courts’ exercise of that power.” We emphasize the independence of the judiciary but pair it with the independence of the other branches:

The independence of the judiciary operates as a formidable check on the actions of the other two branches.  But Congress and the President have checks on this check, too.  Congress largely controls the courts’ jurisdiction — their authority to hear and decide cases.  And if the courts’ decisions conflict with the Constitution itself, Congress and the President possess the power to disregard them (and have done so on certain occasions, as we will see in later chapters).  After all, Congress and the President are bound by oath to support and defend the Constitution, and must resist unconstitutional actions by the courts, and by each other, just as the courts are bound to resist violations of the Constitution by Congress and the President. 

The courts have power to decide cases — and thus check Congress and the President — but little practical power to enforce their decisions, and none to command the other two branches.  As Alexander Hamilton wrote in The Federalist No. 78, the judicial branch “may truly be said to have neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”  Indeed, if the courts could command the other two branches, that would violate Madison’s (and Montesquieu’s) rule that the accumulation of all power in one set of hands is “the very definition of tyranny.”  Traditionally, however, Congress and the President have deferred to the constitutional judgments of the Supreme Court — with only a few notable exceptions — even in cases of extraordinary errors risking great harm to the nation.  The courts’ very weakness thus has become a source of their strength. 

Chapter Three (“Powers”) describes the respective powers of the three branches of the national government, including the nature of “the judicial Power” of the courts. With respect to the courts, we maintain (conventionally) that the independence of the judiciary, combined with the status of the Constitution as supreme law, entirely justifies the idea of constitutional judicial review of legislative and executive acts.  However, we suggest (less conventionally, but historically correctly) that the power of judicial review cannot be taken to imply supremacy of the judiciary over the other branches in constitutional interpretation, but only independence of those branches in the performance of its judicial duties:

The power of independent judgment as to the meaning and application of the law is especially significant under the US constitutional regime precisely because the Constitution itself is designated as the supreme law of the land.  Courts interpret and apply the law as part of their regular function of deciding cases, and the Constitution is part of “the law” — indeed, the supreme law — that courts are to apply.  Thus, the courts — with the Supreme Court at the top of the hierarchy — possess an independent power to interpret and apply the Constitution, as a consequence of their customary power to interpret and apply the law in cases before them. 

This does not make the Supreme Court supreme over the other branches — recall Madison’s statement in The Federalist No. 49 concerning the Constitution’s separation of powers:  “The several departments being perfectly co-ordinate by the terms of their common commission, neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers.”  But it does mean that the framers envisioned the judicial power of constitutional interpretation as a meaningful check on the other branches. 

https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/05/19/the-myth-of-judicial-supremacy/

Doctrine of the Lesser Magistrate! 

Suffice to say that this doctrine is one that relates to rebellion by the lesser magistrate against the greater magistrate. When or whether such rebellion may be Scripturally warranted is a different topic, but the point is that we are no longer talking about whether Obergefell is law, but whether the lesser magistrate is going to obey that law or rebel against that law. In principle, there are times when lesser magistrates ought to rebel against the law, but it is still rebellion against the law. Those who rebel against the de facto authorities, including an unjust greater magistrate, should fully expect to reap the consequences of death, imprisonment, loss of property, and so on. 

That's confused. TFan is repeating the same mistake made by Brad Littlejohn. Their objection fails to distinguish between a general principle and a particular application thereof. Revolution is a limiting case of the principle. Protestant theologians (e.g. Calvin, Knox, Rutherford) developed a theology of revolution. This was codified and secularized by John Locke. 

Magisterial resistance, up to and including revolution, is just a special and (logically) extreme application of a larger principle, which is civil resistance to tyranny in general. So we have an a fortiori argument (a maiore ad minus). If the greater exercise (revolution) is justifiable, then lesser forms of civil resistance are justifiable.