Presidents' Day lesson: the mayor's duty
The Mayor of San Francisco has decided that a state law is unconstitutional under the state constitution, and has therefore ordered city clerks to disobey the law and obey the constitution. This troubles my friend Dan Gillmor, who on last count was right about everything else. And it is an action by a mayor, who on last count was wrong about a bunch of very important things. So who's right now? I try to answer that in the extended essay that follows.
This turns out to be more complicated than at first it seems. And there may be something peculiar about California state law that I don't understand (and would be grateful if someone would correct me). But the answer does not turn upon the rightness or wrongness of gay marriage (I, like Gillmor, believe the state has no legitimate reason to deny gay and lesbian couples the right to affirm a commitment to each other as strong and powerful as anyone else). It turns instead upon your view of the role of an executive.
In our federal tradition, there has long been a duty of the executive (and of Congress) to make an independent assessment of the constitutionality of laws they are charged to apply or enforce. It was on that basis that the Supreme Court originally decided it had the power to declare a law unconstitutional (for the Constitution does not explicitly give the Court that power). And the reasoning that empowered the Court certainly would empower the executive.
E.g., the Constitution requires that any law punishing "treason" require at least two witnesses to convict. Imagine Congress passed a law that permitted a conviction with just one witness. Certainly the president has the power -- even before the courts have said anything -- to refuse to enforce the law, or require his Attorney General to assure that prosecutions always be supported by two witnesses, or pardon anyone convicted under the unconstitutional law. Indeed, Thomas Jefferson exercised precisely that power when he became president by pardoning everyone convicted under the Alien and Sedition Act (which courts had refused to hold unconstitutional).
The complication to this story is 200 years of changing practices. Some presidents (Lincoln, Reagan) continued to assert the independent duty to test the constitutionality of a law. But in general, our legal tradition seems to have delegated decision making about the constitution to the courts.
I think this is an awful development. Its most egregious example recently was the President signing the McCain-Feingold Campaign Finance Law while asserting it was unconstitutional. If the President believes the law is unconstitutional, by what authority does he believe he can sign it? Washington thought the ONLY reason a president could veto a law was for constitutional flaws. But it is truly outrageous to (1) swear to uphold the constitution, (2) assert a law is unconstitutional, but (3) sign the law notwithstanding.
It would be better -- subject to an important distinction that Lincoln drew -- if more executives (and legislators) took seriously their constitutional duty. It would be better if they tested their actions according to their best judgment about the constitutionality of a law. And much better if they took responsibility for their own judgment by conforming their behavior to their view. So my view is that Mayor Newsom is right to do what he is doing, if he is consistent in doing what he is doing generally.
One critical caveat: The rule of law requires some coordination. So if a court decides that a law is constitutional, while an executive has the right to disagree, and even push to have the decision changed, it is important that the executive follow the law at least with respect to that case. Thus, Lincoln thought the decision in Dred Scott was wrong, but he felt it would be his duty to enforce that decision once made. Thus, if California courts decide the marriage law is not unconstitutional, then Newsom should then obey that law as ultimately interpreted.
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Comments (49)
Well, one problem is that there is no requirement that elected officials have a legal background, let alone an understanding of the constitution. A first year law student has a better understanding of the federal Constitution than GW Bush does. Should we only elect lawyers to high office? Frankly I hate to suggest only lawyers are qualified to hold public office, but without a legal background I don't see how someone can know what their "constitutional duties" are. I guess it really depends on how much we care about upholding and respecting principles of law. Most people don't care about things such as "constitutionality" and "due process" and other such legal symantics. As long as fags can't get married like they can, as long as their daughter can't get an abortion without them knowing, as long as the gubment is protecting them from the terrorists, and as long as there's a new episode of American Idol on TV tonight (which has a perpetually-extending copyright on it preventing it from being 'stolen' for ever and ever), abstact things such as their elected representatives not following and respecting the laws that are supposed to constrain them don't really matter much, if at all.
Don't most elected officials have advisors? It seems like a non-lawyer could be briefed on the constitutional issues of signing or enforcing any law by asking one of the myriad lawyers that they have on staff. In the example cited above, how did Bush decide that McCain-Feingold was unconstitutional? I'm sure some lawyer persuaded him that it was.
I am not myself a law student, but I am very interested in constitutional law, and the intentions/developments that gave us what we have today. Do any of you have some suggestions for good biographies/history books on landmark events or people? I read tons by and about Benjamin Franklin, and recently purchased The Debate on the Constitution part 1, but might there be anything else?
Not being a lawyer, I have to defer to your greater knowledge. But...
You discuss the president's duty to assess the constitutionality of a law -- a federal law in the creation of which the executive plays a key role. What similar role did the mayor of San Francisco play in passing a California statute? Can the executive in every sub-jurisdiction, having played no part whatever in the passage of the law in question, now decide on its constitutionality? (In practice, local prosecutors have effective leeway to decide what to prosecute in criminal cases, but again this seems different.)
California's crummy marriage law was going to be challenged anyway (maybe it already had been). I have trouble buying Newsom's move as anything but a stunt -- and potentially a cruel one when/if the state and federal Supreme Courts rule, as I suspect they will, that the law is constitutional.
very nice, Dan. Right, I'm not demanding deference because I'm a lawyer, because the whole point is that deference to lawyers should not be the norm. So, Bruce, if the president can't understand the constitution, then he shouldn't swear to uphold it. (As he did.) And if he can't understand the constitution, then he shouldn't criticize judges who are interpreting it. (As he does all the time, except when they interpret it in a way that makes him president!).
But Dan's point about at what level a question gets raised is an important one. I don't know enough about how local CA law works to know what sort of discretion a mayor's office has over marriage licenses. That's where the real legal struggle should be waged. And is it a political stunt: Well, if that means is he doing it because it will draw attention to a political value of his (and mine and yours): YES! Of course! Just as Bush is doing the same with the silliness about a constitutional amendment. But I don't know why this side of the debate can't engage in stunts!
Readings: Both big books by Gordon Wood; Jack Rakove's "Original Meanings". Those for starts.
Thanks Professor Lessig
Another great opinion piece - thanks Professor. Why did the president sign McCain-Feingold?... because he didnt want the opposition to scream and moan about him being soft on campaign finance reform(both sides are soft on this), didnt want the press ganging up on him over taking PAC and special interest money (which everyone does), and more importantly - HE TOOK THE POLITICALLY EXPEDIENT OPTION.
Pass the bill, pass the buck, let the Supremes decide.
There is a lack of intestinal fortitude in politics. Flip flopping happens on both sides. Opinion polls and focus groups and the direction the wind blows is setting policy.
Its not leadership. McCain Feingold sucks and is proving to be a non issue in this election cycle. Why bother?
Homosexual marriage? Homosexuals make up around 5-6% of the population. Why is this an important issue? WHy all the noise? Because if the decision is left up to the popular vote, while most Americans like to think they are tolerant, the majority would never approve gay marriage(including the tolerant). Before you all get your panties in a twist, I am a Republican who doesn't think there is something wrong with gay marriage.
Is there any difference between this mayor violating the law in california and that judge down south violating the law by not removing the ten commandments (which he personally owns and donated to the courthouse where he was the senior justice) from the courthouse?
When is it ok for the executive to ignore or go around the law?
-SeanB
I don't know if we know if there is a difference yet... the question is what the mayor does [if/when] the courts rule against him and his stays or appeals are exhausted. If he follows the law at that point then he was pushing the boundaries, but, in the end, clearly following proper legal authority. If he does not, then he as unfit for office as Roy Moore was in Alabama.
Well, if you read letter from a birmingham jail by MLK, then it is the duty of every citizen to knowingly, loveingly break bad laws. The law should not be a rigid thing that is never tested but a living breathing instrument, a societal blueprint.
In order to test the constitutionality of the law, it needs to be broken in order for a trial to go to court. I applaud Newsome for doing so. Especially now rather than later this summer, so it can hopefully be forgotten as 'old news' by November.
"Homosexual marriage? Homosexuals make up around 5-6% of the population. Why is this an important issue?"
Becuase five to six percent of the American population (I actually think the numbers might be higher than that) is still a lot of people whose lives and families are impacted by this issue. And it's important because everyone has rights, not just the majority. One of the functions of the court system is to protect the rights of the minorities from a majority that may, as you suggest, just not care.
And for Mayor Newsom's next trick, since it is obvious that the ban on assault weapons clearly contradicts the Second Amendment, city hall will be selling AK-47s to all comers starting Tuesday night.
I'll believe his sincerity on not enforcing laws he believes to be unconstitutional when he does the same with one that isn't so clearly aligned with his own political interests.
"When is it ok for the executive to ignore or go around the law?"
An executive should challenge a law when he can't in good conscience execute it. But when he does that, he must be held accountable for his actions. If he's right it's a victory, and if he's wrong, he'll suffer politically.
The Alabama court felt that Justice Moore went too far and removed him. If Newsom feels strongly enough to stand up for his convictions, he'll be more than willing to accept the consequences.
This is exactly the disobedience that Dr. King talked about, and exactly the behavior we should support in our leaders.
Dan,
This may be a stunt, but I don't think it's going to turn out cruel. The first people in line to get married were Del Martin and Phyllis Lyon, who've been working these issues since the fifties. I don't think they, or any of the others (okay, maybe a few), are under any illusions that this is a done deal.
"[T]he whole point is that deference to lawyers should not be the norm. So, Bruce, if the president can’t understand the constitution, then he shouldn’t swear to uphold it. (As he did.) And if he can’t understand the constitution, then he shouldn’t criticize judges who are interpreting it. (As he does all the time, except when they interpret it in a way that makes him president!)."
Well I agree with this in theory, but to do so means that either only lawyers (or other people who have gone to school to learn about the constution, read con-law books, and understand all the nuances of the thing) are qualified to take the oath of office. And this means that deference to lawyers SHOULD be the norm. In fact, it already is. As was pointed out above, Bush did not decide on his own that McCain-Feingold was "unconstitutional." Either the president is a laywer or defers to a team of them (the latter being inevitable anyway). Ultimately my point was that whether a candidate can understand the constitution to the extent required to properly "uphold it" is irrelevant in the minds of the masses. I'm too cynical to believe that people care about that. There will continue to be ignorant candidates backed up by swarms of deferred-to lawyers.
"Can the executive in every sub-jurisdiction, having played no part whatever in the passage of the law in question, now decide on its constitutionality?"
I think the amount an executive contributes to the passage of a law is somewhat irrelevant to whether or not the executive can decide it's unconstitutional. Yea, if an executive campaigned for the passage of a law, fought for it, and signed it into passage, it does look questionable for him to later backpeddle and say it's unconstitutional. But something could be unconstitutional for a lot of reasons. For example, imagine a governor of a state wanted to get a law passed, and the state legislature finally passed it, the governor giving his approval. Say the Federal Gov't passed a law a year after this state law was passed, and the Fed. law clearly preempts the state law. That makes enforcement of the state law unconstitutional per the Supremacy Clause. What should the governor do in terms of continuing to advocate the state law, which he wanted and got, which can no longer be enforced legally?
Frankly, I don't think it matters. Should we defer to his constitutional knowledge? What if he says the federal law is unconstitutional because it unduly burdens interstate commerce (which is a nonsensical argument for the invalidity of a federal statute)? What if he says the federal law is unconstitutional on 10th Amendment grounds? What if it's very clear that it's a simple case of federal preemption and the state governor is wrong? Does it really matter what position the state executive in question takes? In the end, it will end up decided in court, by lawyers and federal judges who are typically very well-educated and know what they're doing. Score one for deference to lawyers.
Now, what IS a problem is when the state executive (or judge for that matter, e.g Roy Moore) refuses to comply with court orders after the system has deffered to the courts. The law can be questioned, but when it gives an answer that answer must be obeyed (even in the interim of an appeal). This is not yet the situation in San Francisco.
As a practicing lawyer, I'm actually familiar with the basics of research, and I need to use care to be precise in my writing, even in relatively informal contexts, when I hold myself out as having some expertise.
So it is disappointing to see Professor Lessig say that President Bush asserted the unconstitutionality of the McCain Feingold legislation even as he was signing it.
He didn't, and 10 seconds of googling would have revealed that.
Bush noted that he had reservations and concerns about the constitutionality of the legislation. He did not offer a conclusion, and his administration, in point of fact, did defend the constitutionality of the legislation (successfully, I might add).
My understanding was that Mayor Newsom's actions were based on the Mass. Supreme Court Decision. Isn't it reasonable to assume that the Mass. decision at least throws the constitutionality of California law in to question?
I just don't understand.
I just don't understand what part of Justice for *all* "they" don't understand.
I thought the Constitution just applied to *all* of the people. I just guess I'm just wrong.
To just what part of *all* of the people does the Constitution not apply?
If the Constitution just doesn't apply to *all* of the people, perhaps it's un-just.
It's just a thought.
Thanks for the post, Thomas. I did in fact look at what President Bush said when he signed the bill -- which, as you'll recall, was the most moderated version of what he was reported to have thought about the bill. The signing statement is here. In it he plainly says he thinks the bill has "flaws" which are the "serious constitutional concerns" about its breadth. He also notes his "reservations about the constitutionality" on advertising bans.
In my view, if a President thinks a bill is constitutionally flawed, it is his duty to veto it. That's different from a policy difference -- which the President also indicated he had. One can defer to Congress on policy, or pick and choose a policy fight as it is politically expedient to do. But to suggest one should pick and choose a constitutional fight based upon expediency is, in my view, wrong.
Also, that the Solicitor General defends a law does not say what the "president" thinks, at least if you listen to what most SG's say their job is. The SG is charged with defending the laws. That's a different duty from the duty of the president in exercising his veto power. Indeed, under some theories, once the President signs a law, he's under a duty to defend it as well. But that just reinforces his duty (sworn oath) not to sign a law that he thinks is "constitutionally" "flawed."
I'm curious as to the source of the President's power to determine constitutionality. I understood his role under Article II of the Constitution to be the Executive charged with carrying out the "...Laws which shall be necessary and proper for carrying into Execution..." enumerated in Article III of the Constitution. If he believes it to be unconstitutional, he should veto it, but if the veto is not sustained, he must carry it out, as must every government executive. Newsom should have worked this issue through the courts, where hopefully the rights of individuals will be sustained.
TC, I also recommend the novel "Burr" by Gore Vidal for vivdly written portrayal of one of the trials that instituted judicial review.
Its a nice point, but it seems that there are a couple of problems with the argument that this is executive constitutional interpretation.
First, the examples given are all federal, and I'm not sure how they translate to the state context. If we're talking about an interpretation of the federal constitution, than the position is unsupportably close to that taken by the States pre-civil war (i.e., the Kentucky resolution). If anything died at Gettysburg, it had to be the idea of independent state visions of the constitution. So the Mayor, to be on any solid ground at all, must be interpreting the California constitution.
But then, as Gillmore points out, its unworkable to suggest that every state actor should be independently interpreting the state Constitution. Someone has to set an executive constitutional position, and I would guess the natural candidate is the governor. The question then is whether the Governor has the power to take a constitutional position and then order the the cities follow it. This I do not know.
Finally, on the side of the Mayor, it is important to note that he is operating in an area of constitutional uncertainty. That's the distinction between this and the AK-47 example: the constitutionality of gay marriage has been thrown open by Lawrence and has never been decided by the Ca. supreme court. But I still don't see how the mayor interprets the State constitution.
The obvious solution: San Francisco needs its own constitution.
If the president thought that the bill raised constitutional issues--which it certainly did, and thought that a better bill would not, then he was right to say that the bill was flawed, whatever the resolution of those issues. That is, the president could believe that (1) the best possible bill would not raise constitutional issues; (2) that the bill presented did raise constitutional issues; (3) that the bill was constitutional, despite the issues raised; (4) and that the bill was flawed, because it was not the best possible bill. There's no evidence that this case didn't involve such reasoning.
I find it hard to square the notion that the SG's job (and the president's job) is different before the legislation is passed from what it is after that.
Regarding Non-Lawyers in Public Office
I remember that France apparently has a school for 'civil servants' which educated several of their presidents and other political figures. Perhaps
something like that would be useful in the States for making it more
meaningful when public figures swear to uphold the law.. I wonder if/how
this is analogous to the legal training (if any) police recieve.
Thus, Lincoln thought the decision in Dred Scott was wrong, but he felt it would be his duty to enforce that decision once made.
don feherenbacher in his pulitzer prize winning book, “The Dred Scott Case” argues quite convincingly that rather than uphold the law, lincoln’s administration virtually nullfied the court’s decision.
“The widespread fascination, then and later, with the obiter dictum argument, which had the effect of pruning the authoritativeness of a single decision, has partly obscured the fact that some Republicans went further and set forth a narrow definition of the Court’s authority generally, vis-à-vis the other branches of government.... the matter centrally at issue, it should be noted, was not the power of judicial review but rather the range of that power.” (page 439)
like a more modern republican who believes his primary duty is to an x-tian god instead of the constitution, lincoln and his fellow republicans all but ignored the court’s decision.
whether or not he acted properly remains bitterly disputed, but it is clear that he did not take his constitutional duty as seriously as you suggest.
or did he?
the question is, if an amendment to the california constitution is passed should mayor newsom act as lincoln and apply obiter dictum (sic semper tyrannis) or should he broadly accept the new california law despite it being an vile attack of the majority on the rights of the minority of gay and lesbian californians?
either way it seems he's damned if he does and damned if he doesn't.
Having doubts about the constitutionality of a measure and being convinced of it are two very different things; President Bush expressed the former sentiment, not the latter one. And in signing a bill that he had doubts about, he followed the tradition of deference to the judiciary to decide such things.
Shades of gray exist in Mr. Bush's universe.
Gavin Newsom, on the other hand, took a step in the wrong direction in deciding that the mayor of a minor city is the final arbiter of the constitution. But as a Republican, I'm glad he took this step when he did, the better to create a helpful backlash in November.
But the real question is why Willie Brown made Newsom do this just now.
Yeah. Old George "Shades of Gray" Bush.
"Over time it's going to be important for nations to know they will be held accountable for inactivity," he said. "You're either with us or against us in the fight against terror."
"But the real question is why Willie Brown made Newsom do this just now."
Geez, Richard, you are absolutely the last person I expect to be a Matt Gonzalez backer.
SLIGHTLY OFFTOPIC....but hopefully humorous
Thanks, TBM! By your use of legal latin in context, I've added two new concepts to my growing legal understanding. At this rate, I should be able to take the bar....right after I retire. :-)
(Humorous subtext aside, if you legal beagles would hyperlink to definitions of legal phrases that us laymen wouldn't know, we'd be very appreciative. Some of those latin phrases that constitute daily parlance in your world are as foreign to me as my casual use of RAM, VoIP, TDM, and CPU are to my parents. Just a thought....)
--Jason
jason, the problem with literal translations is that they don't convey the same meaning as use of the original phrase.
"sic semper tyrannis" - thus always tyrants - was of course john wilkes booth's infamous exclamation to the audience at the ford theatre in washington d.c. after having shot abraham lincoln in the head. we assumed this would be common knowledge to any american and our use of the phrase was intended to convey irony, not to confuse the reader.
as regards the topic of this thread, there is more to the concept of "obiter dictum" than the literal translation suggests. "obiter dictum" in its full and proper context was the battle cry of the republicans in the wake of the dred scott decision.
at its essence it was a political argument to not let "activist judges" (in this case chief justice taney) overthrow a social movement (abolition) where people actively challenged the fugituve slave law in clear violation of the law as set forth by the dred scott decision. translating the phrase to it's literal legal meaning strips the phrase of its contextual meaning.
professor lessig posed the question should elected representatives be bound to constitutional constraints.... which is a very interesting proposition and not at all black and white.
the professor stated (incorrectly) that even though lincoln opposed the dred scott decision, he felt duty bound to enforce it. actually, lincoln did everything in his power to nullify the decision of the supreme court.
history has judged taney's decision to be legally and morally incorrect - athough as chief justice of the US supreme court taney was well within his constitutional duty to render the decision as such. lincoln as president of the united states should have been duty bound to enforce the decision, yet he did not.
clearly, lincoln did not do his constitutional duty, but in not enforcing the fugitive slave laws most people would say he nevertheless did the right thing. was he a tyrant or great leader? it is still be debated today.
similarly, while the current U.S. president complains about activist judges giving americans too many rights (apparently dangerous thing to x-tian republicans), the real issue is whether or not the san francisco mayor would be right or wrong in defying a decision by the california courts and issuing marriage licenses to gay and lesbian couples.
it's sad and tragic. people who speak of defending marriage cannot even recognize that what is happening in san franciso is a celebration of marriage... and a victory of liberty. (but of course since free people of the same sex getting married makes the baby jesus unhappy something must be done about it.)
the opinion of the three blind mice is MORE POWER TO THE MAYOR... if he is acting in a an constitutional manner that is a matter for the voters of san francisco to decide, not "activist judges."
p.s. btw jason, the mice are not attorneys and we have never studied law. on the other hand, we have had the benefit of a decent education in which latin, among other subjects, was included. latin is not the exclusive property of attorneys at law and should not be bête noir to non-lawyers.
Mr. Gillmor's difficulties with Mayor Newsom's actions result from his presumption of a greater store of knowledge than he indeed possesses. He derides the Mayor's actions are the results of "executive arrogance." Arrogance is a mental state, a presupposition of superiority contrary to provable or observable fact. We do not know whether or not Mayor Newsom thinks himself superior to anyone else. We have not proven that he is indeed not superior. We lack sufficient information, in other words, to make the call on whether he is being arrogant or not.
What the Mayor is displaying is contempt, the less complex close relative of arrogance. He is holding the state law in contempt: despising it, disrespecting it, disdaining it and in the end willfully disregarding it. Contempt can be mere self-willed disobedience. It can also be the expression of purest hatred for petty and not-so-petty evil. That which is worthy of disdain is indeed given its own adjective: contemptible.
Men and women of good faith and sound mind agree that the state law is indefensible in terms of logic and human feelings. Many consider it the institutionalized residue of bigotry, ignorance and fear. Let those who feel this way agree to call to call the state law contemptible, worthy of disdain, and leave the question of Mayor Newsom’s opinions of himself to those closest to him.
So I said my analysis depended upon facts about CA law that I didn't know. My wife reports that NPR reports that there is a law in California that instructs state officials to obey laws until properly challenged in court. If that's correct, that, in my view, changes the analysis completely: Except in the most extreme cases, such a law would be a sensible way to order disputes about CA law. Whether or not the marriage law is constitutional, I should think that law would be constitutional. And if that law is constitutional, then an official who disobeyed it would be -- as Dan Gillmor said originally -- violating the law.
I'm not sure. So basically the California law says state officials must continue to violate the state or federal constitution(s) until the law in question is challenged by someone else? What if state officials are in the best position to challenge the law?
I think everyone has an overriding duty to respect the constitution and not to violate it. How well someone understands the constitution will most certainly depend on their education. But a law that appears to say "officials must violate the Constitution for the meantime" is unconstitutional to the extent that it requires such action.
One distinction that's been left out of this discussion is between executive acts that harm people, and those that don't. If CA's law is constitutional, Newsom has merely used some City and County of SF resources to stage a spectacle. Nor has he disobeyed explicit court orders directed to him, as did the Alabama judge with his 10 Commandments. This behavior, while improper, is more like violating a traffic rule than committing a felony, or even a misdemeanor. It's hardly comparable to the officials who unleash the State's police power in violation of the law.
"NPR reports that there is a law in California that instructs state officials to obey laws until properly challenged in court". I'm puzzled how that could change anything. Surely a law that says "thou shalt obey the law" is vacuous? If law A, that says to do (or not to do) X, is unconstitutional, then presumably to the extent that law B says "obey law A" it is similarly unconstitutional?
I'm not a lawyer, but I have played Nomic. *8)
Professor Eugene Volokh has an interesting post along this vein of discussion.
And thanks, TBM. Your reply was very instructive. I obviously have much more to learn.
My conversations at the local watering hole have been very interesting regarding this subject. This happens to be the only issue that the diehard Republican and the diehard Democrat agree on (against gay marriage), while the three independents (one of which I count myself) disagree (seeing no problem with it). There seems to be one thing that has been missing from the public rhetoric in this divisive issue and that is the one mitigating, equalizing factor of marriage: divorce.
If heterosexuals are experiencing a 50% divorce rate, I don't see the moral justification that they're getting it right. Therefore, I don't believe they have the moral high ground to pronounce the male-female practice "sacred" or "solemn". Ever watched Divorce Court on TV? *shudder*
My friends who oppose my viewpoint mention economic trickle-down effects relating to health insurance and court dockets. I admit that there might be something there but I haven't seen any studies demonstrating these harms.
--Jason
With respect to the California state law saying that officials should respect laws until challenged, I believe I read an article that says it's actually a clause in the state constitution. Also, there have been a number of criticisms saying that this forces people to obey unconstitutional laws until challenged, but I don't believe I ever heard it said that city officials could not issue the legal challenges. In fact, San Francisco just did so. The only difference is that they decided to ignore the law before properly challenging it. The constitutional clause (if there is in fact such a clause) does not prohibit officials from voicing their concerns over the illegality of certain laws, it just directs those concerns to a proper venue.
The relevant part of the California constitution is:
I heard some question as to whether the city of San Francisco is an administrative agency. I found no definition of an administrative agency in the state constitution.
Civil disobedience is a grave action and as such, requires grave motivation. Since there is no requirement that citizens be married and since the act of marriage must be voluntary for marriage to be deemed valid, I see no reason for the actions of Mayor Newsom. Furthermore, he has ordered a number of city officials to act in an illegal fashion. Issuing thousands of invalid marriage certificates hardly seems like the sort of thing a mayor should have on his record. (And like it or not, the marriages being performed for homosexual persons in San Francisco are invalid under existing California state law.)
All that would be needful to file legal action is a single denied application for a marriage license by a same-sexed couple. The denial of marriage to same-sex couples does not impose any grave injustice, so the idea that Mayor Newsom is making a courageous and necessary stand against injustice just doesn't wash with me.
Bruce may have asked the same question above. I'm still scratching my head over this issue since it seems clear to me.
Which law must a local CA mayor obey FIRST? The Constitution of the United States or a state law? What if in interpreting the state law as written suggests violating the Constitution?
If state or local law said slavery was permissable in clear opposition to the Constitution, wouldn't it be foolhardy for a local elected official to permit slavery? Would a local official really have to enforce state law UNTIL the law was challenged either at the level of the state constitution or the U.S. Constitution?
It is the 14th Amendment which protects the rights of those who might otherwise be slaves: 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.
Could not protecting the rights of all citizens to freely enter civil contracts also be expected immediately at local level, despite attempts by any state to abridge those rights?
(Don't even get me started on the 1st Amendment, in respect to making no law respecting an establishment of religion...Grrr...)
It's not that complicated. California's constitution says if you don't like a law, challenge it in court, and while the challenge is pending, enforce it. This provides a clear path to the proper consideration of state laws without allowing each show-boating politico to play vigilante Supreme Court justice.
Nobody elected Gavin Newsom to the California Supreme Court, so he should do his job and let the Supremes do theirs.
I must have missed something, Richard. My understanding is that Mayor Newsom is challenging the constitutionality of the legislation that obviates gay marriage. How can an executive branch be expected to enforce an unconstitutional legislative measure?
--Jason
Hmm. Anybody have a copy of the oath of office Newsom swore, along with his job description? Does it say anything at all about upholding the Constitution along with state law?
Just so there's clarity on this, Richard, you're saying CA state law would support enforcement of any state law in direct constradiction with the Constitution -- like slavery?
If you read the Brief on behalf of the Mayor, it is very clear that Article 3.5 of the Cali Constitution only applies to administrative agencies, and not to a Mayor of a city. At least, it is well-argued in their brief and there was much California caselaw on that point. Section 3.5 seems quite inapplicable.
I haven't read the mayor's brief, but I imagine that even if Article 3.5 of the CA Constitution does not apply to the mayor, it applies to the County Clerk's office, which is issuing the licenses.
Eugene Volokh also has an excellent discussion of this issue.
Professor Lessig's analysis is seriously flawed.
First he posits that the power of a President, one of 3 co-equal branches of the Federal government, provides support for the proposition that the mayor of San Francisco may defy a state law. That might be an appropriate analogy to draw had the governor taken the action. But the mayor is simply the executive of a municipality, a subordinate creature of the state. If Profeesor Lessig is correct, wouldn't a governor of the state be able to defy federal laws on the same proposition.
Secondly, if one allows the first proposition to stand, what is the sense is relegating judicial decision to a preferred status such that the executive is bound to adhere to them as opposed other laws. In fact, judically imposed laws, such as the same sex marriages required by the Massachuestts State Court by a 4-3 margin, are inherently less democratic that acts of the legislature. Why should an executive be bound by that type of decision if he felt that the court wrongly interpreted the constitution.
Andrew Jackson once said "John Marshall has made his decision: now let him enforce it! ". If we are going to invest every executive with the power to defy laws which he
The mayor may be right that the prohibition against unconstitutional. If so his remedy should be to seek redress in the courts or in the legislature at the ballot box. Imposing his will is tyrannical, whether you agree with his motivation or not. I doubt many of those who favor his action would be making the same comments were we faced with the mayor of some southern city defying state affirmative action laws or defying state law limits on abortion protestors.
Whether it's the correct legal course or not, Newsom came up with a rather brilliant political stroke: He put a big public face on the issue, showing couples in love getting married. It's not going to affect the hard-core bigots, but I think it is shifting opinion in the middle, and moving the middle itself.
It's also provoked a serious problem for Bush and the Republicans: Josh Marshall's analysis of this seems dead on to me.
My memory tells me that when the mayor of Nashville, Tennessee was confronted with the possibility of vigorous civil rights demostrations around 1960, he did what no other southern executive officeholder of the time had the sense to do: He gave in to the demands without fighting. If I were in a library (or had all of mine together), I'd check my memory and see how accurate this is. (It still grieves me, as an Arkansawyer, that Faubus, who was not a hard-core bigot, didn't take this course: I believe it would have changed history in a drastically good way.)
I'd also see whether he was breaking state Jim Crow laws in doing do--that's on point here. That was the legal ground on which the city of Montgomery tried to deflect the bus boycott---they claimed that state Jim Crow laws forced them to segregate the buses.
The Montgomery bus boycott didn't turn out so well for the bad guys. Newsom and the city of San Francisco are taking an opposite tack in choosing to challenge arguably invalid state law. Perhaps we'll get a similarly happy resolution this time around.
How could Jefferson have pardoned anyone under the Alien Act, when Adams never exercised its authority? And isn't Adams signing of the Alien Act akin to Bush's signing of McCain-Feingold, since he didn't think its power warranted, and he signed it for political reasons?
I think you are being simultaneously too fair and too unfair to Adams, accusing him of enforcing laws he didn't, and not giving him credit for setting a bad precedent for Bush. ;-)
I realize you were probably just lumping the Acts together as a matter of convenience, but the real reason I'm posting is that I note that none of the examples you gave show an executive actually breaking the law, as Newsom did. Jefferson exercised one power to nullify another, not to break it; Bush, while perhaps violating his oath of office (if you really stretch it, and believe he believed something he sorta said but really didn't), didn't break any law; etc.
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