February 12, 2004

Protest by Unconstitutionality

Posted by Arcane Gazebo at February 12, 2004 7:07 PM

A couple of news items:

South Dakota Lawmaker OKs Abortion Ban

Lesbian couple wedded at SF City Hall

The story on the first item is that the South Dakota state House has passed a near-total ban on abortions (it has yet to pass the Senate). Since Supreme Court precedent holds that such laws are unconstitutional, it is very likely to be thrown out in court.

The second item covers the same-sex marriages now being granted by the city of San Francisco. Such marriages are explicitly forbidden by the California state constitution, so this action also is not expected to survive a court ruling.

These two actions, from opposite ends of the political spectrum, are effectively the same tactic: one branch of government does something they know to be unconstitutional, with the full expectation that it will be blocked in the courts. It's basically just a form of protest. The question I'm interested in is: is this an acceptable tactic?

Ezra at Pandagon used pretty harsh language yesterday to condemn the South Dakota bill, saying:

So what we have here is a white male passing a bill good for nothing but political posturing while fully aware that it is unconstitutional. Absolutely disgusting.

Now, I don't like the idea of an abortion ban any more than he does, but I can't help but notice that the SF same-sex marriage certificates are also good for nothing but political posturing, issued by order of a white male (Mayor Newsom) who is fully aware that they are unconsitutional. Yet I can't imagine Ezra condemning that as "absolutely disgusting". So I suspect the problem isn't so much with the tactic as with the substance of the ban.

I'm generally tempted to say that while I sympathize with Newsom, this isn't appropriate for him or the South Dakota legislature. The rules imposed by the federal and state constitutions, and the protections they provide, are important enough that I feel like government officials should stay within the framework even if they disagree with particulars. Try to change things by proposing amendments, use the bully pulpit to advance the cause, but don't blatantly violate the rules and rely on checks and balances to keep the system going.

But then I think about the extreme cases. Couldn't a constitution contain sufficiently evil provisions that this kind of protest is justified? Suppose the federal constitution contained a provision protecting slavery - would we hold it against Lincoln if he issued the Emancipation Proclamation anyway, knowing that the courts would reject it? And if I'm willing to grant that, I have a hard time arguing that California's same-sex marriage ban isn't also bad enough to justify Newsom's actions. Certainly someone who believed abortion is murder would see the South Dakota case the same way.

In the case of largely symbolic acts like these, I'm inclined to stick with my original thought. Find another form of protest that doesn't show a lack of respect for the constitution -- even if some parts aren't worth your respect. That way you also avoid wasting the courts' time and the taxpayers' money. If the act could make a real difference that other forms of protest couldn't, it might be different.

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