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States Have the Right Under the 10th Amendment to Refuse to Obey an Unconstitutional Order of the U.S. Supreme Court
Raymond Richman, 9/9/2015

Elected Kentucky county clerk Kim Davis refused to grant a marriage license to homosexuals. She did so on religious grounds but it is not the freedom of religion clause of the First Amendment that justified her refusal but the 10th Amendment which recites: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people.” What the US Supreme Court rules is not the “Law of the Land.” The Law of the Land is the Constitution of the United States. Relying on a single clause, the due process clause of the 14th Amendment which was designed to protect the rights of former slaves, the majority of the Court consisting of four political appointees and one “independent” made a decision “at odds not only with the Constitution but with the principles upon which our nation was built”, as Justice Thomas wrote in his dissent.  

The majority decision held that all the states must give under the due process clause of the 14th Amendment the law of a single state declaring that homosexuals have the right to marry even when thirty states have laws that state that marriage can only be a union of a man and a woman. Nothing in the Constitution gives the Supreme Court the right to nullify a State’s law that marriage can only take place between a man and a woman. Kim Davis, the county clerk may refuse to marry homosexuals because the Supreme Court unconstitutionally exceeded its constitutional authority. 

What is the remedy when the Supreme Court arrogates to itself powers that the Constitution never gave it? The Tenth Amendment to the Constitution recites that all powers not specifically granted to the federal government are reserved to the States or to the people. The States and the people have the right to reject and disregard as unconstitutional such a ruling by the Supreme Court. The thirty states which outlaw marriage between persons of the same sex have a right and duty to resist this encroachment of the Supreme Court on their rights guaranteed by the tenth Amendment to the Constitution. They should resist this encroachment by calling out their National Guards and preventing federal marshals from enforcing an unconstitutional order.

Who should be able to determine whether the Supreme Court acted unconstitutionally? Each State has that right under the 10th Amendment. And people have the right to refuse to obey an unconstitutional order of the U.S. Supreme Court unless their State of residence rules otherwise.  

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The author is Professor Emeritus of Public and International Affairs at The University of  Pittsburgh and was until his retirement a member of the Illinois and federal bar. 

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Comment by rod, 9/15/2015: Bullshit




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