For some time, all sorts of people have professed to believe in something called “the rule of law.” They mean different things by this; some refer merely to the equal application of the law to all people, others believe that this principle means even unjust laws must be enforced. But the concept of the “rule of law” came to life vividly recently, when a Kentucky court clerk defied the Supreme Court’s requirement that marriages be issued to same-sex couples. For this, she was given some time in jail for contempt of court, as well as a meeting with the Pope.
When this happened, many liberals (who do not agree with this clerk about same-sex marriage) began to justify the clerk’s jailing on the grounds that she had violated the law, specifically her oath of office. At Esquire, Charles Pierce talked about the importance of oaths, and Noah Feldman did the same at Bloomberg View. This made many conservatives rightly guffaw, noting that they had never heard liberals praise uncompromising enforcement of the law (and imprisonment!) before that moment.
These conservatives were correct. Liberals wanted to see the clerk jailed because she was standing in the way of same-sex marriage, which they believe people are morally entitled to. But nobody really believes in the “rule of law” or the unbreakable sanctity of oaths. As the conservatives pointed out, liberals are perfectly okay with the violation of laws when it comes to sanctuary cities defying federal immigration laws. (Jonathan Adler of the Washington Post desperately insisted there was a difference, saying that under the Constitution, the federal government cannot require local governments to enforce federal law. But Adler should answer the question of, if the Constituion did require local governments to follow federal law, he would then believe San Francisco completely wrong in refusing to chuck immigrants out.)
Nobody believes in the rule of law absolutely. Or, at least, hardly anybody does. Nobody would believe that the Nuremberg Laws, assuming they were lawfully imposed, should be enforced. There is always a scenario in which people can imagine justifying civil disobedience (if a law was passed requiring me to murder my best friend, everyone who professes a belief in the rule of law would also come up with an explanation for why it was acceptable to refuse.) Okay, but what about oaths? When the clerk defied her oath to uphold the law, veryone on the left suddenly started issuing sanctimonious paens to the inviolability of the great Oath Of Office. Those who defy their oaths belong in jail.
For people like Noah Feldman, this is not an especially unforgiving principle, since one can always resign rather than uphold the oath. If you stay, you’ve got to abide by your oath; if you don’t want to enforce the laws, you don’t belong in a job where you have to enforce the laws.
But again, let’s see if that principle always holds. Say I am a judge in a dystopian state. A law is passed saying that, due to the state’s ongoing difficulties in stemming population growth, all orphans are to be collected and disposed of. As a judge, it is my job to enforce this law; orphans are brought before me, my job is to find them guilty of remaining alive in violation of the law (which they are), and to order their death sentences.
Or at least, that is my “job” as far as the letter of the law goes. In reality, I know that I could perfectly well get away with setting the orphans free and pretending they never came into my courtroom. This would be in complete violation of my oath, since the law explicitly says I cannot do this, and I have sworn to uphold the law. But I could do it, and I could save the lives of many orphans.
Now, I’m sure Noah Feldman and Charles Pierce do not believe I should order the orphans killed. (In fact, I asked Prof. Feldman whether he agreed with Justice Antonin Scalia’s position that judges who oppose the death penalty should resign. Prof. Feldman said that he did, if they felt that carrying out the law would fundamentally conflict with their moral principles.) The question, then, is whether I am duty-bound to resign (and simply let someone else send the orphans to their deaths instead of me), or whether I should defy my oath and save the orphans.
I am actually not sure how many people would say I should resign. But I think that resignation, in this instance, is clearly an immoral alternative; the consequences of my act are no different than if I had given the death sentences myself, and I’m refusing to stop a series of murders that I could easily have prevented at no cost to myself, all because I feel wedded to the oath. My hypothesis is that in the extreme case, most people would agree with me. A judge in Nazi Germany, if they know they can save Jews, should save Jews. Their oath is trivial when set against this harm.
But if it’s true that we all mostly agree that there are circumstances in which a law could be so brutal and unjust that one would be justified in defying one’s oath of office in order to mitigate its unjust consequences, the whole rule of law edifice has collapsed. Because now it’s just about drawing a line between when an issue is so important that the oath doesn’t matter, and when it isn’t. And it’s because liberals think same-sex marriage is a good thing that they believe the oath takes priority, not because they think an oath must always be upheld no matter what.
Now, I agree that the clerk should have given the same-sex marriage licenses. But my view has nothing whatsoever to do with the “rule of law” and the oath of office; I simply believe that the clerk is homophobic, and that discrimination against gay people is wrong and therefore should not be done. And I believe that in order to keep discrimination against gay people from happening, a state is sometimes justified in using force (although I would suggest that other alternatives be tried first.)
But I will never say that I believe the clerk’s job was to uphold her oath. That’s because I know there are circumstances where I would feel justified in defying an oath of office in order to avert a heinous consequence. And if I believe that, then I cannot have an absolute insistence on oaths; I must measure whether the reason for defying the oath is itself a morally sound one. Liberals don’t believe the clerk’s reason fit in that category, but that is a substantive moral determination rather than a procedural one. Defying an oath is wrong, if one is defying it in order to discriminate against gay people. Defying an oath is not wrong, if one is defying it in order to save a life. (“But,” I hear the critic squeal, “there is a difference between the justice of disobeying and the justice of punishing the disobeyer. It was nevertheless just to punish the clerk, regardless of the morality behind the defiance. Alright. But you’d better not be queasy at all about MLK; I want to hear you say “It was just to imprison Martin Luther King for parading without a permit.” And if you come up with some reason why that law wasn’t legitimate to begin with, you’d still better be fine with taking the principle to its extreme. “It would be just for Stalin to execute a judge who refused to carry out a purge, if the law required this punishment.” And if you are unwilling to say this, a distinction must be drawn as to why the enforcement is just in the one instance and unjust in the other.)