Constitutional Scholar / Historian Explains Why The Kim Davis Jailing Was Wrong

The following is from a Facebook Post by noted Constitution Scholar and Historian David Barton.

By David Barton
Wall Builders 

An increasing number of media and other voices have criticized Kim Davis for not issuing homosexual marriage licenses in Rowan County, Kentucky. Their complaints generally fall into three categories.

First, she is violating her oath of office by following her religious convictions (comments such as “She is a public servant who took an oath” – voiced in the LA Times).

Second, gay marriage is the law of the land (comments such as “By saying she won't issue the marriage licenses while serving in office, Davis is . . . violating an oath she made before God to uphold the Constitution and laws of the U.S. The Constitution requires her to issue licenses for gay couples” – voiced in Bloomberg News).

Third, she knew this was part of her job, so she should perform it (comments such as “She ran for this office, she knew what was involved” – voiced in the Chicago Tribune).

Consider an historical and traditional constitutional perspective on these three categories of complaints.

First, the issue of oaths. Today, the oath of office has become something perfunctory and almost meaningless – a mere civic formality. But in previous days, it was an act of high religious significance – a fact affirmed by those who formed the governing documents Davis and other officials have sworn to uphold.

Supreme Court Justice James Iredell (a ratifier of the U. S. Constitution placed on the Court by President George Washington) observed that an oath was a “solemn appeal to the Supreme Being for the truth of what is said by a person who believes in the existence of a Supreme Being and in a future state of rewards and punishments.” So, an oath involves a belief in personal accountability to God.

Constitution signer Rufus King added: “By the oath which they [our laws] prescribe, we appeal to the Supreme Being so to deal with us hereafter as we observe the obligation of our oaths. The Pagan world were and are without the mighty influence of this principle which is proclaimed in the Christian system—their morals were destitute of its powerful sanction while their oaths neither awakened the hopes nor fears which a belief in Christianity inspires.” Hence, an oath of office includes the conviction of accountability to God according to Judeo-Christian morals.

Founding Father John Witherspoon further added: “An oath, therefore, implies a belief in God and His Providence and indeed is an act of worship. . . . In vows, there is no party but God and the person himself who makes the vow.”

So to take an oath as required in our Founding documents (1) presupposes that the oath is an act of worship, (2) recognizes personal accountability to God, and (3) acknowledges that the accountability occurs according to Judeo-Christian morals. Therefore, under the traditional American understanding, an oath of office is to uphold the Constitution with the recognition that the person taking the oath will account to God according to how he or she comports with Judeo-Christian morals. On this basis, Davis has refused to perform homosexual marriages.

The second major criticism of Davis is that she refuses to follow the “law of the land” – that the Supreme Court has spoken, and thus the matter is over. But those who make that claim know little about American, constitutional, or judicial history.

For generations, it was recognized in America that a decision of the Supreme Court was exactly what the Court says it is even today. The top of every Court ruling states “The Opinion of the Court,” and an “opinion” is defined in the Oxford Dictionary (and others) as “a view or judgment formed about something, not necessarily based on fact or knowledge.” This hardly constitutes a “law of the land.” But somehow, today the personal opinion of five of nine unelected American lawyers is the equivalent of the Constitution ratified by three-fourths of the state legislatures of the American people. To make the claim that these are legal equivalents defies logic.

Previous generations did not tolerate this nonsensical premise. As Thomas Jefferson affirmed, “[T]he opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action, but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.” He continued, “To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. . . . The Constitution has erected no such single tribunal.” He concluded that if we ever allowed the opinions of judges to become the law of the land, then “The Constitution, on this hypothesis, is a mere thing of wax in the hands of the Judiciary which they may twist and shape into any form they please.”

To hold that five unelected individuals can make their personal opinion the “law of the land” is to believe that those five are infallible. They are not. As Jefferson affirmed: “Our judges are as honest as other men and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps. . . . [A]nd their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control.”

In the American Republic, the “law of the land” does not come from the Supreme Court, which did not even have its own building until 1935. (Before that, the Court met – by the Founding Fathers deliberate design – in the U. S. Capitol, where it conducted its business under the watchful oversight of Congress.) As specifically stipulated in the U. S. Constitution, the “law of the land” comes from the body of elected individuals that meet in the tall domed building across the street from the Supreme Court. Understanding this, officials in previous generations regularly refused to follow U. S. Supreme Court decisions, and were rarely criticized for doing so.

For example, when the Supreme Court in its now-famous Marbury v. Madison decision ordered President Thomas Jefferson and Secretary of State James Madison to take certain actions, both men ignored the Court’s order, calling it a “perversion of law.” And when the Court likewise ordered President Andrew Jackson to take certain actions, he, too, refused, explaining: “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. . . . The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive.”

And when President Abraham Lincoln took office, it was following the Supreme Court’s decree in the Dred Scott v. Sanford decision that Congress could not prohibit slavery – that slaves were only property and not persons eligible to receive any rights of a citizen. But Lincoln rejected the Court’s ruling, explaining in his Inaugural Address that “The candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made . . . the people will have ceased to be their own rulers, having . . . resigned their government into the hands of that eminent tribunal.”

The refusal of these officials to follow Court opinions was not due to personal stubbornness but rather was because they themselves also had read, understood, and knew the Constitution. Part of the checks and balances inherent to the American constitutional system is that unelected officials do not get the final word; the people do.

The third major criticism of Davis is that she is she knew what she was getting into and therefore should never have run for office. But this is a factually inaccurate statement. Davis ran for office in 2014; the Court issued its personal opinion in 2015 – a year after she was in office. She did not know that she was going to be asked to implement a federal policy that no American in the history of the Constitution had ever before been asked to enforce: issue a license for a homosexual marriage. She is now being punished for refusing to do something that was not part of her job description when she took office. In fact, her punishment smacks of an “ex post facto” policy. As even the very progressive Wikipedia explains, “An ex post facto law is a law that retroactively changes the legal consequences (or status) of actions that were committed, or relationships that existed, before the enactment of the law.” The Constitution explicitly prohibits this in Article I, Section 9, Paragraph 3, yet this is dangerously close to, if not exactly what is happening to Davis – except that it is not a law under which she is being jailed but rather the decree of a judge; but the results are the same.

In short, the complaints that Davis is not upholding her oath of office, not following the law of the land, and that she knew what she was getting into are all criticisms that ignore facts, common sense, and traditional constitutional and judicial history.