aefenglommung (aefenglommung) wrote,
aefenglommung
aefenglommung

On the duty of disobedience

The recent Supreme Court decisions -- not just the one on same-sex marriage, but the one on Obamacare, and there are others -- show a propensity in the Court these days to just make stuff up. There is no law here, just raw power. The Court is acting as a legislature or an executive, not a judiciary -- and acting in a manner exemplified by James II at his most dictatorial. The question is, what does one do about it?

The first time that the Court did something like this was the Dred Scott case, in which Chief Justice Taney went beyond merely ruling against Scott to include a whole bunch of vile, racist ideology, stating flatly that a black person, regardless of his legal condition, had no rights a white person was bound to respect. Following the opinion would also have undone the distinction between slave States and free States, by the way, in effect making slavery legal everywhere in much the same way the Court has made same-sex marriage legal everywhere.

Abraham Lincoln and the Republican Party made the case that the ruling in Dred Scott applied only to Scott himself, who remained unfree by the judgment of the Court. Taney's rant about the rights and merits of black people generally they referred to as obiter dicta, meaning "things said in passing," superfluous words having no legal effect. The outcome of Lincoln's approach, to basically ignore the Court beyond the effect on Dred Scott personally, was never tested; the Civil War broke out in the meantime, and the guns of the Union army, backed up by the Emancipation Proclamation and then the 13th, 14th, and 15th Amendments to the Constitution, rendered Dred Scott moot.

Interestingly, Dred Scott was the first Supreme Court decision to employ "substantive due process," a results-oriented jurisprudence that decides what "justice" is and then says whatever it has to say in order to get there. Conservatives and originalists all think substantive due process is a load of codswallop, but it is much loved by progressives and other admirers of the "living constitution."

Anyway, I think it's pretty clear than Anthony Kennedy's opinion in Obergefell is a big, steaming pile of obiter dicta. John Robert's opinion in King v. Burwell, on the other hand, is simply gobbledygook. The one is off-point, a sermon rather than a legal brief; the other turns words on their heads to amend a statute without legislative action. In either case, we're in the realm of just making stuff up. What do we do? Do we obey what we know is wrong? Are we willing to lose our money, our freedom -- are we willing to become pariahs -- to resist unlawful "law?"

In this pass, I am reminded of something from military law. The one, absolute foundation of all military systems is the principle that orders must be obeyed. There is no time in the heat of battle to debate the orders one is given. The power to decide is given to those superior in rank and position, and even if they're wrong, they're in the right when they give orders. Orders must be obeyed even if one is pretty sure they will result in one's own death. Orders must be obeyed even if they are frivolous. Orders are orders, and disobeying orders results in serious penalties. There's no other way to run an army.

And yet. And yet, there is also this corollary to the principle that orders must be obeyed: illegal orders must not be obeyed. As the Nuremberg trials showed, those who commit war crimes or crimes against humanity cannot argue that they were merely following orders. Each of us is an independent, morally and legally responsible person, who chooses whether or not to commit acts one knows are wrong. If a superior officer orders you to commit murder, it is your duty to refuse. Even if you wind up in the brig. Even if you are thrown out of the service. Even if someone else does it and nobody cares what happens to you.

And here's the catch. In a system where the first principle is that orders must be obeyed, there is no established mechanism for disobeying illegal orders, even though everyone agrees that illegal orders must not be obeyed. You can only disobey them and take the consequences, and trust that the mess will be cleared up later and your actions endorsed -- though there are no guarantees that that will be the case. Disobeying what one believes is an illegal order is fraught with consequences. But it should be disobeyed nevertheless.

And so it is with Supreme Court decisions that have no grounding in the Constitution or the common law. We have a moral and legal duty to resist them. Not to go along to get along. Not to accept their legitimacy. But we must not fool ourselves; the Republic may fall before any competent authority agrees with us. Congress may knuckle under and yield its monopoly on legislative powers. The President may be pleased to avoid the confrontation, even abet the Court's usurpations. We may be penalized, even ruined, in our refusal to obey. And we may become very unpopular.

But ask yourself this: Do you want to be remembered as Roger Taney -- an otherwise distinguished jurist -- is remembered? Do you want Dred Scott or something like it to be your epitaph?
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