Sunday, September 6, 2015

More Attacks on Glenn Beck and David Barton, or: Lex iniusta non est lex

[Crossposted at The New Reform Club]

Here and here, for a conversation they had in a car and put on Facebook.

Barton refers to "4 types of law," which is Aquinas. [Blackstone had 6, but they're similar.]

Aquinas recognizes four main kinds of law: the eternal, the natural, the human, and the divine. The last three all depend on the first, but in different ways. Were we to arrange them in a hierarchy, eternal would be at the top, then natural, then human. Divine law is not in conflict with natural law, but it reaches human beings by a different route, revelation.

Barton usually has something substantive in mind, although what comes out is often a jumble. However, his point here could be whipped into shape.

Elsewhere, a correspondent cites the "supremacy clause" of the US Constitution:

Article VI: This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

But that's circular. The Constitution's supremacy clause does not grant to the central government powers it's not specifically given. It is not the supreme ruler of the land, only the highest legislature.

The Constitution was conceived as giving only certain enumerated powers to the central government. The supremacy clause, the "law of the land," applies only to what the central government is constitutionally empowered to do.

Of course, today the federal government claims absolute power over every facet of our lives, but this does not mean it's a legitimate power, nor are we bound by any moral law to bow to it against our consciences--a moral fact implicitly in the First Amendment's free exercise clause.

"Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these."--Blackstone
“A just law is a man made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law.”---Martin Luther King
"That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."--Jeffersonet al.

Barton [and Kim Davis] will lose before the power of the state, which has the biggest guns. But his argument is both timeless and tenable. It's disappointing that their critics are so blinded by their animus against Barton and Beck that they have forgotten the Founding principles. We have the natural right to resist tyranny in all its forms, even "legal" tyranny.

Lex iniusta non est lex.


jimmiraybob said...

Whether Aquinas or Blackstone had 4, 6 or 20 types of law is inconsequential. Today’s U.S legal system is what it is. If the purpose of government is justice for its citizens and if justice is only just when uniformly applied, then there is no tyranny, despite Beck and Barton’s attempt to create tyranny where none exists. To allow every individual employed by the state the unchallenged ability to determine and administer justice based on their own beliefs and opinions is to set up thousands of county principalities ruled by clerks demanding fealty to their biases and prejudices.

Despite your best effort to paint this as a leftist vs. rightist and religion vs. the godless horde issue, the issue that underlies the current hubbub of religious liberty and the menacing leviathan, which is the equal civil rights of gays, has its supporters among liberals and conservatives and among the varies among and within the various Christian and other religious sects in the nation.

And, as to whether or not the “supremacy clause” is applicable and recognized by the State of Kentucky, in the case that you cite - Kim Davis (county clerk), you can consult with the state’s own constitution.(1) And, since the U.S. Supreme Court recognizes the equal humanity of gay Americans under the constitutional protection of the U.S., as they’ve previously done with the descendants of African slaves, and since the state of Kentucky has not mounted an effort to independently rule otherwise, this is not even a state’s rights issue.

And, as I’m sure even Mr. Blackstone would agree, we are a nation of laws and not of county clerks and religious rule.

There is no diminishment of Kim Davis’ religious liberty or civil rights (she is being given the chance to comply with the federal and state law). And, she is completely free to believe and to practice her faith today as she was last year and as she will be for as long as the nation stands. But when her personal religious beliefs prevent her and her department from discharging their civil duties to the citizens of the state and nation, then it’s time for her to examine her options. And perhaps her best option is to relinquish her bond with the state and the state’s mammon and start a Christian ministry that speaks to her faith.

1) Section 228 of the Kentucky Constitution, oath of officers and attorneys:

Members of the General Assembly and all officers, before they enter upon the execution of the duties of their respective offices, and all members of the bar, before they enter upon the practice of their profession, shall take the following oath or affirmation: I do solemnly swear (or affirm, as the case may be) that I will support the Constitution of the United States and the Constitution of this Commonwealth, and be faithful and true to the Commonwealth of Kentucky so long as I continue a citizen thereof, and that I will faithfully execute, to the best of my ability, the office of .... according to law; and I do further solemnly swear (or affirm) that since the adoption of the present Constitution, I, being a citizen of this State, have not fought a duel with deadly weapons within this State nor out of it, nor have I sent or accepted a challenge to fight a duel with deadly weapons, nor have I acted as second in carrying a challenge, nor aided or assisted any person thus offending, so help me God.

Text as Ratified on: August 3, 1891, and revised September 28, 1891.
History: Not yet amended. Available on line @

Art Deco said...

The misfeasance of the appellate judiciary has grown so promiscuous (and has been so applauded by the legal academy) that they can no longer function as credible empires. The serious question is what replaces that rancid little subculture. Replacement starts with noncompliance.

Art Deco said...


Tom Van Dyke said...

Lex iniusta non est lex.

Dissent and disobedience are the highest forms of patriotism, unless you get in their way. Then they are ruthless. They will crush you, and Kim Davis. This was never in dispute.

No point in discussing principle with these people. That door swings only one way--theirs. Screw Aquinas, screw that letter from the Birmingham jail. Screw principles. We got the power now.

FTR, there is no law for her to disobey, only a Supreme Court decision. Supreme Court decisions and wrong all the time. The only question is how much the Higher Law requires us to comply.

Lex iniusta non est lex. As usual, the entire point of the essay was missed or ignored, our time wasted once again.

Mrs. Webfoot said...

Lex iniusta non est lex.

Dissent and disobedience are the highest forms of patriotism, unless you get in their way. Then they are ruthless. They will crush you, and Kim Davis. This was never in dispute.>>>>>

Jackbooted egalitarianism. Thou shalt be equal, or else! Christians, thou shalt retreat to your catacombs where you belong. Let the enlightened rulers rule.

How can we think that the Supreme Court of the United States could never decide something outside the limits of the Constitution? We take the adjective “supreme” way too seriously. They are not the supreme everything, and they are not lawmakers at all.

You are right, Tom. There is no law here for Kim Davis to disobey, so what is she doing in jail? Are we sure that there are no political prisoners in the US?

Tom Van Dyke said...

Yes, conservatives don't like disrupting the public order, so they let the left have their way. [Even when the left is disrupting the public order, say #OccupyWallStreet.]

But that also leads to surrendering too easily.

Huckabee: "Kim is asking the perfect question: 'Under what law am I authorized to issue homosexual couples a marriage license?' That simple question is giving many in Congress a civics lesson that they never got in grade school.

The Supreme Court cannot and did not make a law. They only made a ruling on a law. Congress makes the laws. Because Congress has made no law allowing for same-sex marriage, Kim does not have the constitutional authority to issue a marriage license to homosexual couples."

The Supreme Court CAN be fought, by the other branches, by the states, by the people themselves. What if 100s of Christian officeholders did what Kim Davis is doing? Surely something would change. They can't throw EVERYBODY in jail!

Art Deco said...

They cannot throw anyone in jail if the president withdraws the U.S. Marshal Service from their jurisdiction and sends them a letter informing them that they'll have to hire Pinkertons out of pocket.

In 1985, there was one of those shizzy disputes wherein a federal judge who resided in Pound Ridge, N.Y. ordered the City of Yonkers to site their public housing where he wanted it. There was a certain amount of resistance to this and several members of the city council were jailed. It would have been a great opportunity for the Reagan Administration to be noncompliant and refuse to detain them. For some reason, the opportunity was passed up.

Tom Van Dyke said...

The shizz hath hit the fan.

Doug Indeap said...

This show-me-the-law argument is facile. Kentucky law establishes certain legal requirements of marriage. One of those requirements was a limitation of marriage to couples of the opposite sex, one man and one woman. The U.S. Supreme Court found that limitation to be contrary to the 14th Amendment of the U.S. Constitution, the supreme law of the land, and held that the Constitution “does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.” The Court thus effectively invalidated Kentucky's law, and thus rendered it inoperative, insofar as it restricts marriage to opposite sex couples and left the rest of Kentucky’s law intact and operative.

In response to the Court's decision, the State of Kentucky, through its governor, decided to continue implementing the remaining valid aspects of its law on marriage and do so in a manner consistent with the U.S. Constitution as explicated by the U.S. Supreme Court. Toward this end, the governor issued a directive to the state's county clerks that “[e]ffective today, Kentucky will recognize as valid all same sex marriages performed in other states and in Kentucky.” The law Kim Davis is obligated to implement, thus, is the existing law of Kentucky on marriage minus the invalidated opposite-sex limitation—in keeping with the Supreme Court’s decision and the governor’s directive.

Why some suppose that a new law must be passed in order to further spell out Kim Davis’s obligations is not apparent. Her obligations under existing law are plain enough.

Tom Van Dyke said...

I agree the argument is facile, but the governor can't make law either, so it holds as far as it goes.

The live question is

The Unsoundness of Judicial Supremacy
by Paul R. DeHart
within Constitutional Law, Politics

Decisions of the Supreme Court that go beyond power delegated to the judicial branch or are contrary to the Constitution are null and void. To protect our constitutional republic, citizens, states, and the other branches of the federal government must resist any such decision.

although nobody has the will or guts to fight this battle either.

JMS said...

C‘mon Tom – you cannot be serious. Barton’s thesis and facts are wrong, incorrect and false. How are they “substantive” or “tenable,” when he and Beck are engaging in a deliberate disinformation campaign. Let’s cut through res publica/natural law/Aquinas theory, and taking MLK’s Letter from a Birmingham Jail out of context (a la Mike Huckabee). MLK said that the difference between a just and an unjust law is in the equal application of said law.

I wish the USA had done what Ireland did in making gay marriage the law of the land after an intense campaign and many debates, where an overwhelming majority of the Irish population voted to legalize gay marriage. But in our much larger, more diverse and litigious federal republic where representative democracy is becoming increasingly dysfunctional, we resorted to the Supreme Court as the final arbiter.

Why is a high court legal decision labeled “unjust” or judicial “tyranny” or a “putsch” when one does not agree with the outcome? The judgment in the gay marriage Obergefell case is solidly grounded in the equal protection clause of the 14th Amendment: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." This ruling is based on the unanimous decision in the famous Loving v Virginia case which held that anti-miscegenation laws prohibiting inter-racial marriage were illegal because they violated the 14th Amendment.

So-called “religious liberty” objections were made against the Loving decision a la Kim Davis. The trial court in Loving stated, “Almighty God created the races white, black, yellow, malay and red and he placed them on separate continents. . . . The fact that he separated the races shows that he did not intend for the races to mix.” But this reasoning was rejected by the Supreme Court, which noted that there was “no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification.”

So, if the equal protection clause applies to Loving it also applies to Obergefell. This is what MLK meant by equal application of law. Case closed – move on.

Art Deco said...

we resorted to the Supreme Court as the final arbiter.


There was never any 'we' in that transaction other than a handful of lawyers meeting in secret.

Mrs. Webfoot said...

Art Deco said...
we resorted to the Supreme Court as the final arbiter.


There was never any 'we' in that transaction other than a handful of lawyers meeting in secret.>>>>>

Think FIFA, here. When the “final arbiter” is lawless, what can the people do?