Thursday, October 22, 2020

Justice Kennedy on The Rule of Law and Obergefell

Here is a report of some remarks Justice Kennedy recently made at Harvard Law School:

Justice Kennedy told students that public officials who object a law based on moral standing should resign from office rather than refuse to enforce it.

 The Supreme Court Justice also noted that it is mandated for government officials to "enforce a law that they believe is morally corrupt," even if they do face "difficult moral questions."

He continued, "The rule of law is that as a public official in performing your legal duties you are bound to enforce the law."


So what is the Rule of Law and how does it differ from The Rule of Men?

 Wikipedia defines Rule of Law:



The rule of law is the legal principle that law should govern a nation, as opposed to being governed by arbitrary decisions of individual government officials. It primarily refers to the influence and authority of law within society, particularly as a constraint upon behavior, including behavior of government officials.[2] The phrase can be traced back to 16th century Britain, and in the following century the Scottish theologian Samuel Rutherford used the phrase in his argument against the divine right of kings.[3] The rule of law was further popularized in the 19th century by British jurist A. V. Dicey. The concept, if not the phrase, was familiar to ancient philosophers such as Aristotle, who wrote "Law should govern".[4]
Rule of law implies that every citizen is subject to the law, including law makers themselves. In this sense, it stands in contrast to an autocracy, collective leadership, dictatorship, or oligarchy where the rulers are held above the law. Lack of the rule of law can be found in both democracies and dictatorships, for example because of neglect or ignorance of the law, and the rule of law is more apt to decay if a government has insufficient corrective mechanisms for restoring it. Government based upon the rule of law is called nomocracy.

Is Obergerfell a case under the Rule of Law or the Law of Rulers?

Even if the result is a good one as many of you no doubt believe, is it ever good for the Court to rule 320 million citizens from the Bench? Do the ends justify the means?

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