Justice Kennedy told students that public officials who object to 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.
On the other hand, Judge Richard Posner defends the Living Constitution and decisions such as Obergefell by asserting that (link):
I’m not particularly interested in the 18th Century, nor am I particularly interested in the text of the Constitution. I don’t believe that any document drafted in the 18th century can guide our behavior today. Because the people in the 18th century could not foresee any of the problems of the 21st century.
For Posner, the role of the judge in constitutional cases is as follows:
If you look at the entire body of constitutional law, that body of law bears very little resemblance to the text of the Constitution in 1789, 1791, and 1868. David Strauss, University of Chicago, has argued that the Constitution is an authorization to the judiciary to create a body of common law, limiting powers of other government officials. That’s the reality. The only useful way to advocate with regard to constitutional law is to give a good contemporary argument for or against a particular interpretation.
I think we can forget about the 18th century, much of the text. We ask with respect to contemporary constitutional issues, ask what is a sensible response.
I’m a pragmatist. I see judges as trying to improve things within certain bounds. There are practical restrictions on the exercise of one’s moral views. There are specific laws that are deeply entrenched. Where the judges are free, their aim, my aim, is to try to improve things. My approach with judging cases is not to worry initially about doctrine, precedent, and all that stuff, but instead, try to figure out, what is a sensible solution to this problem, and then having found what I think is a sensible solution, without worrying about doctrinal details, I ask “is this blocked by some kind of authoritative precedent of the Supreme Court”? If it is not blocked, I say fine, let’s go with the common sense, sensical solution.
Is Posner's view of constitutional law consistent with The Rule of Law, or is it The Rule of Unelected Judges?
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