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Mark Steyn On the Marriage Debate At The Supreme Court

Friday, March 29, 2013

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HH: The week of marriage continues, because commentary would not be complete until we heard from the Columnist To the World, Mark Steyn. You can read all of Mark’s work at, of course, www.steynonline.com. Hello, Mark, and welcome, a Happy Easter to you in advance.

MS: Yeah, Happy Easter to you, too, Hugh.

HH: So what did you make of both the substance of the arguments and the coverage of the great days of marriage debate before the Supreme Court?

MS: Well, I must say I’m astonished. Ted Olson is a smart guy, and I’m astonished by the weakness of the arguments. I mean, I don’t, just to be fair ahead of all that, I think there is something absurd and ridiculous in an appellate court defining an institution that predates the United States by a couple of millennia. I think that’s taking judicial supremacism to an absolute point of absurdity. But given that, I’m not a big fan of Justice Kennedy, but I thought he made an incredibly obvious point when, like everybody else, Ted Olson said well, you know, once upon a time, we banned interracial marriage, so this is exactly the same as Loving V. Virginia, the 1967 case that struck down interracial marriage. And you know, Justice Kennedy said you know, what are you on about? He said in that case, the interracial marriage is basically an invention of 19th Century America that was at odds with existing common law marriage as it had been for hundreds of years.

HH: You mean the ban? You mean the ban, the ban on interracial marriage, yeah.

MS: Yeah, the ban. Yeah, so the ban on interracial marriage was the innovation, and a disgusting, localized innovation in Virginia and other American states at odds with every common law jurisdiction in the British West Indies, for example, or in India. In India, one out of every, during the Raj, one out of every three British men is estimated to have married an Indian woman out there. So in other words, in other common law traditions, there was hundreds of years of experience with interracial marriage. It’s a completely irrelevant, it’s an entirely irrelevant comparison, and I’m astonished by the laziness of Ted Olson and others who rely on that Loving V. Virginia case.

HH: And I think that did get shot down, but the federalism argument, the second day, appealed to him. But within the second day’s argument, Mark Steyn, there was a smaller argument, but actually, I think potentially even more important that this one, and that has to do with the authority of the President to decide what the law is. And I want to play for you an exchange that Justice Scalia had with General Verrilli, and then Erwin Chemerinsky, my regular commentator’s commentary on that, so that I can get your assessment of what the Justice was aiming at, and what the left, and Erwin’s a very fine, brilliant lawyer, but he’s a man of the left, responds. Here is the exchange and the commentary.

AS: It has not arisen very often in the past, because in the past, when I was at the Office of Legal Counsel, there is an opinion of the Office of Legal Counsel which says that the Attorney General will defend the laws of the United States except in two circumstances. Number one, where the basis for the alleged unconstitutionality has to do with presidential powers, when the presidential powers are involved, he’s the lawyer for the President, so he can say we think the statute’s unconstitutional, I won’t defend it. The second situation is where no possible rational argument could be made in defense of it. Now neither of those situations exists here. And I’m wondering if we’re living in this new world where the Attorney General can simply decide it’s unconstitutional, but it’s not so unconstitutional that I’m not willing to enforce it, if we’re in this new world. I don’t want these cases like this to come before this Court all the time, and I think they will come all the time if that’s the new regime in the Justice Department that we’re dealing with. 

HH: Erwin, you must be sympathetic to part of this at least. 

EC: A President and an Attorney General take an oath to uphold the Constitution. The President and the Attorney General always have been able to say I believe this law is unconstitutional, I’m not going to defend it. Now I understand Justice Scalia’s frustration with a situation like this, where you have a federal law and the United States government is enforcing the federal law but won’t defend it, but I don’t think there is any Constitutional way to make a President defend a law that the President thinks is unconstitutional.

HH: Mark Steyn, you’ve lived in countries with the strong prime minister approach to government. But even in those countries, the prime minister doesn’t get to disregard or redefine the Constitution.

MS: No, I mean, in a sense, this is the logic of judicial supremacism, that if you believe that the Supreme Court is a kind of super legislature, or indeed a kind of super sovereign, then it is quite, in a sense, it becomes reasonable to say well, you know, what do I know about whether it’s unconstitutional or Constitutional? We’ve had these, in a sense, we’ve been in similar situations in the past. I think it was President Bush when he signed campaign finance reform who said he didn’t think, personally think it was Constitutional, but he signed it into law anyway. I mean, at some point, the executive and the legislature have to reclaim a balance of powers from a deference to a view of judges as the kind of super legislature. And I think this kind of a shrug from the government, where you can say yeah, it’s unconstitutional, but we’ll enforce it, or no, it’s Constitutional, but we’re not going to enforce it, which is the current state with the immigration law, I think that takes us very close to a land without law entirely, and a land of men.

HH: That’s where Chief Justice Roberts went. Here’s what he had to say, and then Erwin’s commentary.

JR: What is the test for when you think your obligation to take care that the laws be faithfully executed means you’ll follow your view about whether it’s Constitutional or not, or you won’t follow your view? 

HH: What do you think, Erwin? Does he need a test? Do we need a test as a self-governing people for understanding when the President is going to say his oath obliges him not to defend a law? 

EC: There’s no test that can be formulated. The test is that of the Constitution. The President takes an oath to uphold the Constitution and laws of the United States. If the President believes that a law is unconstitutional, the President has the power to refuse to defend it. And no court can conceivably say they’re going to order the President to defend the law that the President believes is unconstitutional. 

HH: Now Mark Steyn, that sounds exactly like you just said, a country in which we don’t know which laws are real, and which ones are not going to be enforced.

MS: Right.

HH: …whether it’s immigration or marriage, it is lawlessness.

MS: Yeah, and I think that’s a real danger of the kind of present, if you like, the present sort of cultural dispensation, where you have a political class that largely strikes poses, and that leaves active detailed legislation to the bureaucracy, and then uses the courts as a super back-up to check whether they’ve got all their ducks in a row, as Chief Justice Roberts did with Obamacare. But the danger of that is that you accelerate what I think is one of the most unattractive situations, which is that essentially the President gets to decide which laws he enforces, which he doesn’t, and as you see in the immigration debate, for example, in which once the laws are simply being disregarded on a large enough scale, then they become, then the President, in effect, sides with the lawless over the law abiding.

HH: And that’s where we are. Now before I lose you, last week I missed you, and I assume you were in Cyprus withdrawing your money before the banks closed. Have you actually ever rambled around Cyprus?

MS: Oh, yes. Yes, I have. I went to see some friends on the British sovereign, the British military’s sovereign bases in Cyprus.

HH: I hope you didn’t leave any money left there, because you’re not going to get it back, are you? And does it matter?

MS: Well, Cyprus is to Russia as the Cayman Islands are to Mitt Romney. And the difference is that Vladimir Putin, when you start messing with his deposits, Vladimir Putin takes it a lot more seriously than Mitt would with a bank down in the Caymans. So I think this is actually part of a much bigger geopolitical standoff between the new Russia and the European Union. So it’s got an undercurrent to it that’s on a totally different scale.

HH: Mark Steyn, would you have money in a Spanish bank right now?

MS: No, I wouldn’t, but I’ll tell you this. Capital flight within Europe is very, I mean, there’s a lot of money that’s gone walking from Greece and Spain into German banks. And one of the things that I find interesting about America’s banking system, for example, if we were to find ourselves in the same situation, the American banking system makes it a lot more difficult to take your money out and drive it up to the Royal Bank of Canada in Montreal or whatever. In a sense, capital flight is still relatively easy in Europe. When the powder keg goes up here, it’s not going to be as easy as it is for the Spaniards.

HH: Mark Steyn, have a wonderful and a Happy Easter.

End of interview.

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