Why Supreme Court Justice Anthony Kennedy should resign

· November 2, 2015  
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The Supreme Court Justices of the United States posed for their official family group photo in Washington DC, USA on September 29, 2009. The justices are John G. Roberts (Chief Justice), John Paul Stevens, Antonin Scalia, Anthony Kennedy, Clarence Thomas, Ruth Bader Ginsburg, Stephen Breyer, Samuel Alito, Sonia Sotomayor. Fabiano Gary | AP Images

As a public official performing his legal duties, Justice Anthony Kennedy is bound to enforce the law of the land, which is the Constitution that was ratified in 1789. If he feels that he is facing difficult moral questions in upholding the Constitution as it was written and adopted at the time of its passage and at the time of its relevant amendments, then he has an obligation to resign his office.

That was the gist of what Kennedy said about Kim Davis and those facing similar predicaments, but in reality, it is more aptly applied to himself.  During a speech he delivered at Harvard last week, he was asked by a law student if state officials are always bound by the “new insights” of Kennedy and his colleagues and if they are prohibited to “act according to the old understanding of life and the Constitution.”

Kennedy replied by extolling the virtues of those who resign when their faith comes into conflict with what he views as the law.  He even gave the bizarre analogy of judges resigning in Nazi Germany, and then noted the following:

Great respect, it seems to me, has to be given to people who resign rather than do something they view as morally wrong, in order to make a point. However, the rule of law is that, as a public official, in performing your legal duties, you are bound to enforce the law.

Since Justice Kennedy chose to bring up Nazi Germany, he is actually making a self-indictment.  When the “laws” of the land are implemented improperly and in a lawless fashion, those laws are null and void, except for the ability of its purveyors to enforce them with brute force, as Kennedy did with Kim Davis via the GOP-appointed district judge.  But shouldn’t those who made the immoral laws, as Kennedy alluded to with his own analogy, resign first?

We are a nation of laws, not of men.  Hence, our law is the Constitution, not Anthony Kennedy’s societal musings.

While great men can disagree over esoteric constitutional questions pertaining to separation of powers or obscure provisions, nobody can disagree about the plain meaning of the Constitution as it relates to societal questions not addressed in the document.  They are left to the states. And that is why not a single state recognized gay marriage for the first 135 years after the ratification of the 14th Amendment, and nobody disputed their power to do so.  Kennedy plainly recognized this and therefore ruled that the law is whatever it is “as we discover its meaning.” [1]

Kennedy openly declared that he can personally discover new meanings that overturn our entire history and state laws that were around during the ratification of the 14th Amendment, and that is the law of the land.  No, sir.  If you have issues with the law passed by 75 percent of Kentucky voters – the law Kim Davis was following and the law implicitly supported by the 10thAmendment – you are the one who should resign.  Kim Davis was following the law.  You, not Davis, are the one with moral problems regarding the law, given your new “discoveries” and “insights.”

When Kennedy suddenly discovers a federal constitutional right for men to relieve themselves in female bathrooms, will federal administrators who worked in their offices for 30 years prior be forced to resign for not implementing his new insight?  This is beyond any degree of despotism our Founders ever envisioned.

In 1824, two generations removed from the Founding, Madison reminded people that the law of the land had not changed: “I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimateConstitution.” [my emphasis added]

If Anthony Kennedy doesn’t like our Constitution the way it was accepted and ratified 226 years ago, he is welcome to resign and pursue a convention of the states to codify his social preferences into law via constitutional amendment.  Alternatively, he is welcome to run for office and enact statutes through the political process.  Until then, he is obligated to uphold the original Constitution.  There are more than enough able-bodied lawyers who can serve in his place.

[1] Obergefell v. Hodges, 576 U.S. ___ (2015), at 11(“The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”)


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Author: Daniel Horowitz

Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.