GOP presidential candidate Mike Huckabee blasted the Supreme Court on Tuesday for allegedly going beyond its authority to interpret the Constitution and making law. His listeners were a crowd rallying in support of Kim Davis, the recalcitrant Kentucky county clerk just released from jail.
Hopefully, they didn't believe what Huckabee told them.
"We do not want this country to become the smoldering remains of what was once a great republic, where the people rule," the former Arkansas governor told the crowd. That vision of America should not be "exchanged for a place where five unelected lawyers think that they can rule," he said.
"We're here to say, 'No, they cannot,'" Huckabee declared.
Rowan County clerk Kim Davis is supported by Republican presidential candidate Mike Huckabee as she speaks at a rally on Sept. 8, 2015.
He was referring to the Supreme Court's June decision finding that gays and lesbians have a constitutional right to marry. Davis has famously -- or infamously -- opposed that ruling in her refusal to issue marriage licenses to all comers in Rowan County.
Huckabee's mention of "five unelected lawyers" was borrowed from the landmark decision itself. In his dissenting opinion, Chief Justice John Roberts wrote that the "five lawyers" -- otherwise known as his fellow justices -- who ruled in favor of gay couples "have closed the debate and enacted their own vision of marriage as a matter of constitutional law."
"Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept," Roberts wrote.
It's not clear that a more majoritarian process, such as the Kentucky state legislature passing a law, would have persuaded Davis to go along with the new legal reality. But not even the Roberts Court was willing to suggest her religious liberty arguments sounded good. Last week, the high court declined to get involved in her case and to let her disobey a federal judge's order. Defiance of that order was what ultimately landed Davis in jail for contempt of court.
Though the Supreme Court's refusal to intervene last week was issued without an explanation, it at least indicated that the justices aren't eager to advance the culture war between gay rights and religious rights that Huckabee is pushing.
Nodding to the separation of powers and "the genius of our Constitution," Huckabee told Davis supporters on Tuesday that the Supreme Court's power is "limited" and that it "can only review a law." Reasonably true.
But then came his warning that "the founders never gave that one branch of government the power to make a law."
Huckabee added, "That is reserved for the representatives of the people. Our founders were so concerned that they said that should we ever come to the place that we allow a court to run amok of its purpose, then we would be living under what is no less than judicial tyranny."
Huckabee was thin on the specifics of how to tell when a court is running "amok." But it can be gleaned from his comments Tuesday -- and a January interview with talk show host Hugh Hewitt -- that he thinks that Supreme Court rulings on constitutional issues aren't final and that state officials may flout them when they disagree.
In the Hewitt interview, Huckabee said there has to be an "agreement" between the Supreme Court and "the other two branches of government" for something to become the law of the land. Anything less, he said, could potentially lead to a "confrontation."
That thinking reveals a clear misunderstanding of basic civics, not to mention Arkansas' own appalling constitutional history.
This is U.S. History 101: It was settled over two centuries ago that the Supreme Court is the final arbiter on the meaning of the Constitution and of the constitutionality of any laws that may conflict with it. The text of the Constitution provides that it is "the supreme law of the land" and that all other sources of law -- including the states and their constitutions -- are bound by it.
Nine black high school students in Little Rock, Arkansas, are escorted by U.S. paratroopers on Sept. 25, 1957. Gov. Orval Faubus had earlier ordered the state militia to bar the teens' entry to Central High School.
Alternatively, Huckabee could look to a gubernatorial predecessor of his for clues on how misguided his comments are.
Following the Supreme Court's 1954 ruling in Brown v. Board of Education, Arkansas and its governor, Orval Faubus, stood in staunch opposition to desegregating the state's public schools. They claimed that Brown didn't bind them.
That resistance led to the Supreme Court's ruling four years later in Cooper v. Aaron, which directly involved the Little Rock, Arkansas, school district. With one voice, the justices declared that Brown was indeed "the supreme law of the land."
Why? Because the Supreme Court's interpretation of the Constitution, they said, is "of binding effect on the States."
In addition, the court pointed out that state officials take an oath to support the Constitution. No official can later wage a battle against that Constitution "without violating his undertaking to support it."
That's awfully reminiscent of what Kim Davis is doing with her opposition to issuing marriage licenses -- which, in the view of one scholar, may be a sinful act in and of itself. And it's a constitutional lesson that should make Huckabee think twice before he tells people that a Supreme Court ruling doesn't bind them.
Daniel Marans contributed reporting.
