This past Saturday, I had the great privilege of addressing a rally in support of Kim Davis.
Kim Davis is the elected clerk of Rowan County, Kentucky, and she has been jailed by a federal judge for disobeying his order to her to issue marriage licenses to people of the same sex.
She refuses to do so.
Other speakers at the rally addressed the moral argument against her confinement. That argument rests on the idea that our rights come from God and that no government can grant a right (to anybody) to do that which God declares to be wrong.
But during my brief remarks I attempted to address the legal argument that rests on the explicit language of the Constitution of these united States. Specifically, the Constitution grants lawmaking power only to Congress and NOT to the Courts, not even the Supreme Court.
You see, Article One, Section One – the very first sentence of the Constitution — says this:
“All legislative power herein granted is vested in a Congress…”
So, if all federal lawmaking power is in Congress, then how much is left over for the Courts?
The answer, of course, is zero.
Under our Constitution, courts render opinions in cases and controversies that come before them, they do not make laws.
It follows that there is no law that Kim Davis has broken and therefore there is no legal reason to detain her further.
This is the same argument, by the way, made by Republican presidential candidate Mike Huckabee, former Governor of Arkansas. And after I made my assertion on the lawn in front of the detention center where Kim Davis is being held unlawfully NBC, CBS, and others referenced the legal case in my address and people are talking. Men like Rick Santorum, Historian David Barton, and even Glen Beck have jumped aboard stating, that in fact, a Supreme Court Opinion does not legally trump the Laws of Nature and Nature’s God.
Why is this important?
For years, courts have been issuing opinions and claiming to themselves lawmaking powers that they don’t legally or morally have. This case is bringing attention to that usurpation.
Traditionally, courts have used the “equal protection clause” or the “due process clause” of the Fourteenth Amendment to establish national policy. In effect, they use these clauses to accomplish an “end run” around the clear meaning of the words of our Constitution.
For example, imagine, in this case, that the Congress had actually passed an act that purported to require all county clerks to issue licenses to people of the same sex.
Well, since the Constitution does not include this activity in one of the enumerated powers of the federal government, such an act would be void by the terms of the Tenth Amendment. But the federal courts have effectively bypassed this limitation on federal power through court opinions that purport to be, but are not in fact, law.
Ask yourself this question:
How can the courts enforce a law that Congress cannot make?
So, the proper, legal, constitutional authority of the courts is now being openly and nationally discussed because of Rowan County Clerk Kim Davis.
This is a blessing.
And this is the question in the present case:
If there is a law that requires Clerk Davis to issue such a license, then what legislature voted on it and passed it?
What executive signed it? What are its terms?
What does it say? Where is it written?
Essentially, it comes down to this:
Show us the law, or free Kim Davis.