September 3, 2015

The Two-Fold Perspective of the Kim Davis Ordeal

By In Blogs, C.Jay Engel

Kim Davis was thrown in jail for contempt of court. She is a county clerk in Kentucky who, among other duties, hands out government licenses.  In the Kentucky Constitution, marriage is defined as one man and one woman. As she swore to defend the Kentucky Constitution, she had a choice to make after the Supreme Court’s Obergefel decision, which sought to redefined marriage at the Federal level.  Should she obey the Supreme Court or the Constitution she swore to uphold? She chose the latter.

Feds don’t like such disregard for their laws, even though the US Constitution does not allow them to define marriage at all.  So off to jail she goes.  Remember how the libertarians always said that “laws” are ultimately backed up by aggression?  Perhaps this experience will give this government employee another perspective on the nature of her employer.

Friend of the site Ben Lewis over at the excellent blog The Great Fiction, gave his thoughts on the whole ordeal. I recommend reading them. In effect, he points out that this is a two fold issue.  There are two levels of analysis here: nullification (the state or local levels simply saying no to the Federal Government’s demands) and libertarian theory.

So then, should her act of nullification be praised or criticized? Praised. It is a good thing when smaller governments (also known as “Lesser Magistrates”) refuse to participate in Federal Government shenanigans.  It is a healthy check on a Federal Government that has spent the last century expanding its influence throughout the States.

Should her implicit agreement with the idea of state marriage license be praised or criticized? Criticized.  The state should not be handing out marriage licenses.  Some people point out that the state should enforce contracts, and therefore they should also hand out marriage licenses.  Contra this argumentation, I defend Murray Rothbard’s title-transfer definition of a contract, thereby rendering the marriage commitment as, not a contract, but rather as a covenant.  Moreover, this is a silly argument even on its face. When two people sign a contract for something, it is not as if they go to the state to get a license to approve their contract.  What has a contract to do with a license?

In short: we need to strategically advance the idea of nullification while at the same time expressing the proper libertarian view of things.  Kim Davis should not even be handing out marriage licenses in the first place.  But given her position, it is always healthy–and charming– to see people like her stick her thumb in the Federal Government’s nose.  That’s nullification. Would that every county participate in political matters in this way.

Go read Ben’s post now.

Written by C.Jay Engel

Editor and creator of The Reformed Libertarian. Living in Northern California with his wife, he writes on everything from politics to theology and from culture to economic theory. You can send an email to reformedlibertarian@gmail.com