I guess we needed someone to give last rites to the rule of law, and it might as well be Attorney General Eric Holder – a man famed throughout the land for ignoring legal requirements he finds personally inconvenient, including congressional oversight. It’s time to dispense with all pretense of “law” in the United States, which is why I think it’s appropriate to put Holder’s title in scare quotes. He’s not really the “Attorney General” any more; that function absolutely depends upon the concept of law, which has been largely replaced by politics and ideology.
From this day forward, the Ruling Class will decide what the law means at any particular moment. It is no longer necessary to muster popular support for the lawful process of amending or rescinding legislation. Our rulers will tell us if they think all, or part, of any given bill should be obeyed, and by whom.
For the time being, they’ll limit these dictatorial powers to Really Important Stuff, but you never know what their ideology will pinpoint as a “we can’t wait” red-light emergency next. Whimsy is the defining characteristic of dictatorship. There are no hard-and-fast rules to establish this law must be enforced as written, forever, while that law can be dropped like a hot potato if the polls aren’t looking good. We are expected to place our absolute faith in the individual discretion and high moral character of our rulers, rather than insisting on the time-consuming process of legislation by our elected representatives.
Thus we have “Attorney General” Holder telling his subordinates to just go ahead and ignore those icky laws against gay marriage. We don’t even get to have the big Supreme Court showdown where same-sex marriage is conjured from some penumbra of the Bill of Rights. We don’t get to continue any “national conversations” on the matter. Perhaps the business of properly revising these laws would ultimately bring the gay marriage movement what it wants – it’s been doing quite well lately, although it retains a preference for court victories over legislative achievements – but that could take years. If the national legal system simply stops defending a law Holder doesn’t like, we can achieve his preferred results immediately.
From Fox News:
Speaking to the National Association of Attorneys General, Holder said that any decision not to defend individual laws must be “exceedingly rare” and reserved for “exceptional circumstances.” He indicated that legal challenges to gay marriage bans would qualify as such a circumstance.
“In general, I believe that we must be suspicious of legal classifications based solely on sexual orientation,” he said.
His remarks, while already generating backlash from conservatives, could fuel a wave of legal challenges at the state level. In the wake of the federal Defense of Marriage Act being struck down by the Supreme Court last year, several Democratic state attorneys general have taken the unusual step of abandoning their defense of state gay marriage bans.
Granted, that sounds a lot more exciting than the boring old rule of law, what with elected legislators introducing bills and debating the consequences. What a snore!
Call me old-fashioned if you will, but the rule of law doesn’t seem like something you can kinda-sorta have, except when the Ruling Class feels it has a good reason to disregard cumbersome checks and balances. It’s not even satisfactory to set aside the rule of law because a sizable portion of the populace supports the notion. Our system provides us with reliable methods for the majority to restructure our legal environment… and the minority to make themselves heard. But the new post-legal ethos loves the tyranny of the majority. Swift and absolute conformity to certain ideological judgments is required.
Not coincidentally, the people who embrace this mindset are growing rather exasperated with granting freedom of speech to dissenters. Free speech always winds up in the trash heap alongside the rule of law, sooner or later. If you’re not willing to fight a tough legislative battle that might well include concessions to the losing side, you’re not going to be interested in hearing them complain about the results.
Free speech also jeopardizes the sense of absolute righteousness essential to those who believe themselves empowered to cast aside laws they disapprove of. That’s what “Attorney General” Holder was driving at when he said how “exceedingly rare” the exercise of these dictatorial powers should be. If you start showing an ounce of respect for dissenters, you might hesitate to trample them underfoot.
Unsurprisingly, those who have reservations about the gay-marriage crusade were less pleased by Holder’s remarks than supporters:
After Oregon’s attorney general, Ellen Rosenblum, decided not to defend such a marriage amendment, National Organization for Marriage President Brian Brown called the move shameful.
“She swore an oath of office that she would enforce all the laws, not just those she personally agrees with. The people are entitled to a vigorous defense of the laws they enact, and the marriage amendment is no exception to that solemn obligation,” he said in a statement.
As for Holder’s comments, Ed Whelan, president of the Ethics and Public Policy Center, disputed Holder’s guidance and said in a statement following the speech that “state attorneys general are obligated to defend state marriage laws.”
He added: “It’s unfortunate and outrageous that Attorney General Holder doesn’t understand that, but it’s hardly surprising.”
In Virginia, the federal court case could have major implications for similar laws throughout the southeast.
Adam Umhoefer, executive director of the American Foundation for Equal Rights, urged the Fourth Circuit Court of Appeals to uphold the lower-court decision.
“Loving gay and lesbian couples and their families should not have to live one more day as second-class citizens under unjust laws,” he said in a statement.
Insisting on the rule of law really should not depend on where your feelings on this particular issue lie. The structure of law itself is more crucial than any particular issue. If same-sex marriage is truly a social imperative, it’s worth the longer, more difficult struggle to get it done right.
One of the other big same-sex marriage controversies of the moment is an effort by the state of Arizona to protect business owners from legal compulsion to provide services at same-sex weddings; i.e. bakers who cite religious conscience to avoid making a cake for a gay wedding. Suppose this effort is defeated, and the law obliges bakers to make those cakes. Would it be OK for state attorneys in Arizona to refuse to enforce those laws, based on exactly the sort of personal conviction Holder invokes?
It’s difficult to stress the importance of supporting the system to someone who is convinced the existing order is absolutely wrong, and must be changed immediately, with zero room for objections. They’ll understand better when they find themselves on the wrong side of the next righteous crusade, see an “Attorney General” nullify a law they support, or watch a President they disagree with usurp the powers of Congress and the Supreme Court… assuming it’s not too late to stand up for the rule of law by then.
Update: The Hill reports that a group of black pastors is calling for Holder’s impeachment:
The Coalition of African American Pastors (CAAP) is targeting Holder after concluding that going after the nation’s first black president would be a losing battle.
“If Obama was a white man, he would be impeached,” said Rev. William Owens, the group’s founder and president. “Obama has been given a free pass to do what he pleases, but I don’t give him a pass. I’m very black, been black all my life. He doesn’t get a pass. I don’t give him a pass.”
The group is launching an effort to gather a million signatures in support of Holder’s impeachment.
“He will go down in history as the worst attorney general,” Owens said.
As of late Tuesday morning, however, only 81 people had signed an online petition backing the effort.
We’re growing quite comfortable with the post-legal era, or at least unwilling to kick up a big fuss about what we’re losing. In an earlier time, someone with Holder’s professed convictions might have honorably tendered his resignation, declaring himself unwilling to enforce laws he considers the moral equivalent of segregation, but the Ruling Class no longer sees any reason to inconvenience itself with such gestures.