Lithwick

We will have more to say about this; (and see update, bleow). In back and forth emails, a friend and I had a discussion stemming off this post below. The discussion started with my observation that left and right leaning folks offer inconsistent support for the authority of a court's ruling, and inconsistent theories of ultimate constitutional interpretation. Example:

1. Mayor Newsome permitted homosexual couples to be married in San Francisco despite a clear California law, made through California's initiative procedure, disallowing such marriage. While Newsome was not acting despite a court order directed to him, he did take the role of constitutional interpretation upon himself and deemed the California law banning same sex marriage unconstitutional- as violating equal protection. This move by a local government figure found applause from individuals and from several media outlets.

In my mind, and necessarily implicit in this applause, was the issue of non-judicial constitutional interpretation; in other words: the power of government officials to not abide with or not wait for judicial rulings. Here, Newsome simply did not wait for a ruling from California's courts supporting his constitutional vision. Rather, Newsome came to a constitutional conclusion--that the law is unconstitutional--and applied that decision.

Supporting Newsome's position in the Constitution. Before Justice Marshall decided the landmark Marbury v. Madison, there was no real expectation of what is now a given: judicial review. The Constitution does not make courts the final arbiters of whether laws are constitutional--rather, Congress and the Executive, by making laws, make them constitutional.

Supporters of Newsome had to take this view--that a local government official has some power to step on the court's prerogative. (of course, once the California court did rule, Newsome discontinued the homosexual marriages. )

2. After a recent 4th circuit ruling barring such action, several town counsels continue to make prayers specifically to Jesus before meetings. The 4th circuit ruled that prayers directed specifically to Jesus violate the establishment clause, a ruling fitting very comfortably within Supreme Court precedent. The power to disobey a court ruling, while in many respects different from the above discussion of disobeying a law, relies on much the same reasoning regarding constitutional interpretation. To wit, it relies on de-emphasizing judicial review. The town counsel members, goes the reasoning, should be able to determine whether their prayer constitutes an establishment of religion. Along with the Constitution's support for this argument, as recited above, is the populist argument. Why should 9 unelected elites in DC decide these important issues exclusively? Again, those 9's precedent is clear: the specific prayers violate the 1st amendment. But shouldn't a town be able to tackle this issue, and determine whether the Court was wrong in so interpreting?

The two arguments above flow along the same reasoning stream. But, I betcha, the arguments are picked up and dismissed by the left and right according to their desired results. Many on the left love the court's authority in the prayer case (why, don't these city counsel members respect the authority of the law?); while the right loves the court's authority against Mr. Newsome. It isn't difficult to imagine one person arguing for Newsome's power to decide California's law unconstitutional while flipping around his position to argue against the city counsel members that are ignoring the 4th circuit's ruling.

My friend added to this discussion the differing treatment that media companies give to the Mayor (violating law to further gay rights) as compared to various madias' treatment to those, like Judge Moore, that violate court rulings that clash with their more government-religion-permissive view of the first amendment. That's a long discussion, drawing from many subsidiaries (for my friend and I, we could not get past a divide as to what is big media?)

But, the article linked to above may provide something to all this. Ms. Lithwick, in the Times today, notes several government officials that seek to overcome a perceived court-attack on their faith.

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Update.

Professor Amar has a few columns in FindLaw that are on point and may be interesting to the reader. Professor Amar writes about Mayor Newsome's argument that, as Mayor, he swore to uphold the Constitution and, as such, allowed gay marriage under equal protection. Ultimately, Amar disagrees with the Mayor's position. First this:

One of Mayor Newsom's more forceful claims, however, is that complying with the California constitution here would compel him to violate the U.S. Constitution -- which trumps the state constitution, according to the U.S. Constitution's Supremacy Clause.

In addition to the Supremacy Clause, the Mayor also points to the U.S Constitution's Oath Clause. The Oath Clause says that "all executive officers [including mayors] . . . of the several states . . . shall be bound by oath or affirmation to support this Constitution." Mayor Newsom points out that he himself took such an oath, and must abide by it.

Mayor Newsom furthers notes that he holds the good faith belief that supporting the U.S. Constitution's Equal Protection and Due Process Clauses requires him to support equal marriage rights for same-sex couples. And, conversely, he argues that he also holds the good faith belief that refusing equal marriage rights to same-sex couples would violate the federal Constitution, and therefore violate the oath he took.

Complicating the matter, the California Constitution addresses what is unaddressed in the US Constitution:

The problem for Mayor Newsom is a specific provision of the California Constitution. Article III, section 3.5 of the California Constitution says that an "administrative agency has no power to refuse to enforce a statute, on the basis of its being unconstitutional unless an appellate court has made a determination that such statute is unconstitutional."

In other words, the California Constitution itself says that when an agency thinks that a statute violates the Constitution, the agency should continue to obey the statute until appellate courts have resolved the matter. Section 3.5 thus sets up an orderly process to prevent each agency from going its own way and disregarding the will of the legislature in the name of constitutional conscience.

Amar then discusses what I discussed above--the argument for non-judicial determination of constitutional law. I will quote this discussion below. For now, to cut to the chase--why does Newsome lose in California, in Amar's view:

If Mayor Newsom is right that sometimes there is room for independent executive judgments on constitutionality, and right that his position won't lead to chaos, then why -- in my view -- is he still wrong in the bottom-line position he has taken?

For one simple reason: California has the right to choose -- and has apparently chosen, in Section 3.5 -- to have a uniform position within the state executive branch concerning the constitutionality of state statutes. And that position, according to California's choice, is the Governor's position in defense of all statutes that haven't yet been struck down -- not the Mayor's.

Read his articles for more substance- that is the basic argument. Here, though, is the Professor's telling of what I attempted above: a discussion of judicial review and its discontents:

Newsom Is Right that the Executive Can Sometimes Make Constitutional Judgments

Some opponents have suggested that Mayor Newsom has no business making constitutional judgments in the first place; that is for the courts, and only courts, to do. But that argument defies both the oath he took, and history.

Mayor Newsom is right that in some circumstances, executive officers are entitled to make independent constitutional judgments. Or, put another way, it is not the case that only courts can undertake constitutional review - it is not true that other branches of government always need to wait for, and defer to, the judiciary's determinations of which statutes are constitutional and which are not.

As the California Attorney General's brief points out, Marbury v. Madison does say that "it is emphatically the province and duty of the judicial department to say what the law is." But "emphatically" is not "exclusively," and history suggests that sometimes the Executive -- and not just the Judiciary -- has also pronounced on the constitutionality of laws.

Indeed, many a President has historically, and I think properly, asserted a power to decline to enforce a Congressional statute that he believes is unconstitutional -- a power deriving from both the oath he takes to support the U.S. Constitution, and his duty to see that the law, especially the Constitution, is "faithfully executed."

Historical Examples of Constitutional Judgments By Presidents

For example, in the 1798 Alien and Sedition Acts, Congress sought to outlaw criticism of incumbents -- an obvious First Amendment violation. The federal courts, however, held otherwise.

Thomas Jefferson pardoned all those who had been convicted under the old Act, despite these court decisions. To Jefferson, the question was not simply what courts had done or might do, but what his own independent constitutional conscience dictated.

In 1832, President Andrew Jackson vetoed a bill on constitutional grounds -- again, using independent judgment despite a prior court ruling. There, the Supreme Court had already upheld a similar bill against constitutional challenge. But Jackson wrote:

The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision.

Even the Supreme Court itself agrees to some extent: As Walter Dellinger observed when he served in the Office of Legal Counsel during the Clinton administration, the Court has "endorsed" the practice of a President's declining to enforce statutory requirements he views as unconstitutional.

Independent Constitutional Judgment By the Executive Will Not Always Lead to Chaos

Opponents also claim that Newsom's position is inherently unworkable: Allowing a Mayor to follow his own constitutional conscience would lead to chaos.

But that's simply not the case. As a general matter, allowing local officials to disregard state statutes they think are unconstitutional would hardly lead to anarchy -- for there are relatively few instances where an official in good faith can allege he believes a statute is unconstitutional. A state could, if it wanted, choose not to have a section 3.5 analogue in its state constitution.

Opponents' more specific predictions of how Mayoral exercise of constitutional conscience would lead to chaos are also overstated. For instance, they suggest that, according to Newsom's logic, a pro-life Mayor could order prosecutors to criminally charge doctors who perform abortions, despite Planned Parenthood v. Casey's affirmation of the basic principles behind Roe v. Wade.

But that's not correct. Newsom's position allows Mayors to protect federal constitutional rights more broadly than courts have yet protected them, but not more narrowly.

Consistent with his position, Mayor Newsom's expansive interpretion of federal equal protection would allow him to authorize same-sex marriage. In so doing, he would be thwarting California statutes to be sure -- but not violating anyone's constitutional rights. There is no federal constitutional right of heterosexuals to enjoy the exclusive protection and benefit of the marriage laws, and no one -- given the state of American law -- could believe in good faith that there might be such a right.