Kim Davis, the Media, and the Constitution

September 6th, 2015 8:09 PM

If it were up to today’s media, there would still be slavery. And once the Thirteenth Amendment ended slavery, today’s media would have championed segregation and racism. 

Say what? 

One is struck in all the coverage of Kentucky county clerk Kim Davis and her refusal to follow the “rule of law” of just how little the Constitution matters in various newsroom precincts that should know better. More amazingly still are some conservative media denizens and GOP presidential candidates who have taken the same position.

Same sex marriage is decidedly not the issue here, anymore than slavery or segregation were once the issue. The issue always is: “What does the Constitution say?”  Not that you will hear much of this from the media.

No one has been clearer or more illuminating on this than, but of course, Mark Levin. The talk radio host and author of bestsellers on the Constitution spent considerable time  this past week discussing the Kim Davis case and the Constitution. Senator Ted Cruz called in to discuss this, and among other things Cruz the Harvard Law star graduate said this:

Where is the call for the Mayor of San Francisco to resign for creating a sanctuary city resulting in the murder of American citizens by criminal illegal aliens welcomed by his lawlessness? Where is the call for Obama to resign after 6 ½ years of ignoring and defying our immigration laws, our welfare reform laws, even his own Obamacare? When the Mayor of San Francisco resigns, when President Obama resigns then we can talk about Kim Davis. But for every talking head who goes on TV and says this one county clerk in Kentucky is a threat to our liberty, what they are saying makes no sense.

Cruz has also set up a “Stand With Kim Davis” website that says: 

Today, judicial lawlessness crossed into judicial tyranny. Today, for the first time ever, the government arrested a Christian woman for living according to her faith. This is wrong. This is not America. I call upon every Believer, every Constitutionalist, every lover of liberty to stand with Kim Davis. Stop the persecution now.

And over at National Review, stunningly, comes this tweet from Charles Cooke:

Ted Cruz is extremely smart and understands this perfectly. Which is why his statement was so reprehensible.

Huh? Say what? So its OK for all those officials from the Mayor of San Francisco to President Obama to defy the law and their oaths of office and its all just one big no big deal? It’s OK for Anthony Kennedy or Roger Taney to override the Constitution and insert their personal views on same-sex marriage and slavery? For other Justices to give a thumbs up to segregation (Plessy v. Ferguson) and interning Japanese Americans (Korematsu v. United States)  without so much as a by-your-leave to the text of the Constitution and no one in officialdom had a right to resist? To stand up for the Constitution?  Apparently not in the eyes of Mr. Cooke.

There is not an inconsiderable irony here about what happens when violating the Constitution is, as it were, OK for me but not for thee.

Mark, writing in his 2005 bestseller Men in Black: How the Supreme Court is Destroying America, notes this of Justice Kennedy - and noted this years before Kennedy’s ruling on same sex marriage this year.

Recently, Justice Anthony Kennedy, in a 2003 speech to the American Bar Association, spoke out against federal mandatory minimum sentencing laws that the courts - and Kennedy - are obliged to uphold: "I can accept neither the necessity nor the wisdom of federal mandatory minimum sentences. In too many cases, mandatory minimum sentences are unwise and unjust."

Kennedy again decried Federal Sentencing Guidelines in testimony before the House Appropriations Committee when he said, "I do think federal judges who depart downward are courageous."

This is a remarkable declaration. We have a Supreme Court Justice praising judges who violate federal law, and almost no one noticed, and even fewer cared. I doubt Kennedy would be so complimentary about lower court judges - or legislators - defying his Court rulings.

And here we are all these years later after Mark wrote those words and the media is going nuts because one county clerk in Kentucky - Kim Davis - is doing precisely what Anthony Kennedy suggested. She has taken it upon herself to “depart downward” (to use Kennedy’s exact words) from Kennedy’s own ruling on same-sex marriage. If its OK for Kennedy to call for exactly this type of action - to give it his sanction when it involves sentencing guidelines - why shouldn’t Ms. Davis have every right to believe she is following Kennedy’s own suggestion to the letter? And in her case in departing downward from Kennedy’s ruling standing up for the Constitution?

Mark Levin took to the radio waves at the end of this last week and added:

How can it possibly be that the law of the land that these judges swear to uphold, the law of the land under which they have whatever authority they have, can be abused by them and then we are forced to live by the law of the judiciary?

The court had no business whatsoever getting into this issue of same-sex marriage. NONE!

And that’s why we have a problem in Kentucky.

Not because of the lady in Kentucky, but because of Justice Kennedy and the four other justices.

That’s why we have a problem in Kentucky!

Not because of the Federal Constitution. Not because of any State Constitution. But because of five justices who acted outside the law, who violated the law, and now we have people saying ‘follow the rule of law.’


What they really mean is follow the rule of Anthony Kennedy. And of course the lower courts are going to enforce this.

The New York Times is, but of course, having a fit about Davis putting the Kennedy philosophy into practice. In this article titled "God vs. the Constitution in Kentucky" the paper wails:

In short, Ms. Davis has no right, constitutional or otherwise, to refuse to do the job Kentucky pays her to do.

Uh-huh. Neither does Obama the have the right to re-write the law on amnesty or immigration but he does and no one cares. Neither does Kennedy have the right to refuse to do the very constitutional job America pays him to do - but he refused to do it anyway and gets nothing but an “atta boy!” from the Times. And back there in 2003 Kennedy was busy urging federal judges to go be “courageous” and “depart downward” from the law because he personally didn’t like the law. Or in other words, Kennedy was urging federal judges to model exactly what the media erroneously accuse Kim Davis of doing. There was nary a peep from the Times about this idea - and there never is as long as they like the outcome of whatever a non-Constitution-obeying judge  or president does.

Let’s move away from judges and over to the release of classified information to Wikileaks by the Army’s Private Bradley (now Chelsea) Manning. The Washington Post wrote at the time Manning was convicted that Wikileaks and Private Manning:

…spilled classified government data into the open, in some cases endangering individuals who were identified in diplomatic cables. Pfc. Manning had taken an oath to protect secrets, which he broke. No system of secrecy can function if people ignore the rules with impunity; it is reasonable that Pfc. Manning be punished in some way for breaking those rules.

So for Private Manning to break his oath he has to be punished? Ms. Davis must be punished? But not so with federal judges who use their conscience to override the Constitution? And not so for President Obama or the San Francisco Mayor?

Liberals in the media are suddenly in love with this wisdom from Justice Scalia:

[I]n my view the choice for the judge who believes the death penalty to be immoral is resignation, rather than simply ignoring duly enacted, constitutional laws and sabotaging death penalty cases. He has, after all, taken an oath to apply the laws and has been given no power to supplant them with rules of his own. Of course if he feels strongly enough he can go beyond mere resignation and lead a political campaign to abolish the death penalty” and if that fails, lead a revolution. But rewrite the laws he cannot do.

The Washington Post published that Scalia wisdom here. This particular gem was written by Jonathan Adler, who yes indeed - teaches constitutional law at Case Western University School of Law. Adler concludes his piece in which he praises Scalia by writing:

If Davis believes the government’s definition of marriage is fundamentally immoral and contrary to her religious convictions, she should remove her self from the state’s machinery of marriage. That she has every right to do. What she does not have the right to do, however, is serve as a government official and fail to fulfill the obligations that come with that office.

Allow me to rewrite the good Professor Adler just slightly - this way:

If Obama/Kennedy/the Mayor of San Francisco believes the government’s definition of immigration/welfare law/ObamaCare/marriage is fundamentally immoral and contrary to his political/ideological/religious convictions, he should remove him self from the state’s machinery of administering immigration/welfare/ObamaCare/marriage. That he has every right to do. What he does not have the right to do, however, is serve as a government official and fail to fulfill the obligations that come with that office.

But of course, there will be no demand for these resignations because…because…because. Because they have come down on the liberal favorite side of an argument and so the media doesn’t care.

Scalia is right, of course. But alas it is not a view beloved of liberals in the media and out, on the bench or off. In liberal land the Constitution is situational. In the day it was OK for prominent Democrat and pro-slavery Roger Taney to try and rewrite the Constitution and insert a right to own slaves. In the day it was OK for the Court to give a green light to stripping Japanese Americans of their Constitutional rights. In today’s world Anthony Kennedy gets plaudits for inserting his personal views to re-write the Constitution on same-sex marriage. And as Ted Cruz notes, its just fine to not fulfill one’s oath of office as long as a liberal policy end is served.

The point, of course, is that the substance of these decisions - slavery, interning the Japanese-Americans, rewriting the ObamaCare law from the bench, sanctuary cities or legalizing same-sex marriage - is not the point. The point is the Constitution. 

The irony here is that having encouraged a culture of, to borrow from Justice Kennedy, “departing downward” from the law Kennedy and others have provided Kim Davis with the courage to stand up for the Constitution - which, not to be too obvious, is actually Kennedy’s job.

One can only wonder what the media would be reporting if some federal judge somewhere found  that it was time to “depart downward” from the Constitutional right to a free press and ordered the shut down of the New York Times or MSNBC? And some gutsy publisher or editor or producer took a Kim Davis-style stand and refused to comply?

What would the media say? They would lionize him or her as a hero.

And they should.