• Simon Jester

    dismantle more than 200 years of limited-power governance
    Really? Where have you been the last 80 years?

  • Sarah Baker

    Maybe I should have made it clearer that there has already been a steady erosion of limits on the powers of the political branches. But that does not alter the fact that the Court continues to function (sporadically, inconsistently, insufficiently, yes) as a constraint on those branches. Without judicial review, there would be no limits on the power of political majorities. We would not have a constitutional republic at all, but unfettered democracy.

  • Simon Jester

    Nah, I was just trying to be facetious. Clearly anyone with the viewpoint articulated in this article would be fully aware that the limit on state power has been being eroded for some time. On your main thesis, yes–without judicial review there’s hardly any point to having a supreme court.

  • Sam_Handwich

    The premise of this article is incorrect. Kim Davis was not jailed for personally refusing to issue marriage licenses to same-sex couples, but for ordering her deputy clerks, at least one of whom was perfectly wiling to, from issuing the licenses.

    Kim Davis has no “individual liberty” to do prevent her staff from fulfilling the duties of their office.

    Furthermore, Judge Bunning has essentially carved out an exception for Davis’ personal beliefs by placing the onus on the Country Clerk’s *office*, not the county clerk personally, to issue licenses.

    It is Davis who was thwarting her deputies’ individual liberty by attempting to impose her personal religious beliefs on the whole office.

    Burning irony, indeed.

  • Sarah Baker

    I think you and I agree.

    Kim Davis has an absolute, unfettered right to believe what she does and to live her personal, private life accordingly. She DOES NOT have an “individual liberty” right under the Constitution to receive a taxpayer funded paycheck while refusing to fulfill the duties of her office and interfering with the abilities of her clerks to do so.

    NOW, she may have a right to reasonable accommodation under the state religious freedom statute. It seems reasonable to me to provide a work-around where her name is not required on marriage licenses. That’s fine.

    BUT, in the meantime, the rights to Equal Protection for ALL state residents to receive marriage licenses if they otherwise qualify cannot be delayed. The solution is a court order allowing someone else to sign the licenses until the legislature fixes the problem.

    The premise of my post is this: the Constitution does not set forth the broad and unenumerated rights of individuals. It sets forth the narrow and enumerated powers of government. The right to “marry” the person you love predates and transcends the Constitution. No enumerated power permits the government to interfere with that.

    Conservatives who want to get rid of judicial power to protect individual rights, because they dislike gay marriage so much, are being short sighted in their thinking. Absent judicial review that protects such liberties, there would be no constitutional limits on the powers of political majorities.

  • Sarah Baker

    If the government was a role playing game, I would be the Supreme Court and just strike down EVERYTHING. ;-)