[Population: One] <A HREF="http://popone.innocence.com/ar

[bryant]

Warning: the post ahead touches upon devil’s advocacy regarding recent gay rights events in San Francisco.

Dan Gillmor wonders whether the Mayor of San Francisco should be ordering city clerks to disobey the law. Larry Lessig chimes in. His argument is that the executive branch has a duty to disobey unconstitutional laws. I find myself pensive. Ashcroft and Bush no doubt feel that it is unconstitutional to force them to provide counsel to Jose Padillo.

I am also not convinced by the McCain-Feingold argument. There is a distinct difference between vetoing an unconstitutional law and refusing to obey one after it has become law.

Perhaps the last paragraph saves the argument:

“One critical caveat: The rule of law requires some coordination. So if a court decides that a law is constitutional, while an executive has the right to disagree, and even push to have the decision changed, it is important that the executive follow the law at least with respect to that case.”

But we do not say “Well, Bush is wrong, but it’s all right for him to make that decision until the courts overrule him.” We say “He should never have done that.”

Elsewhere, there’s the obvious comparison to Roy Moore:

“The fact is, Newsom has a duty to uphold the law, as Moore did as a judge. If he is not willing to do that, he can resign in protest. That would have been the truly principled thing to do. He could have also issued a proclamation that he thinks gay marriage would be a good thing, and his office could even issue a proclamation that he considers all those couples to be married, even if the law doesn’t allow it, and give all those couples copies to put on their walls.”

And yes, Newsom is violating his oath of office. No less so than Roy Moore, unless you think Newsom’s oath is less meaningful than Justice Moore’s. Of course, most of the people using this line of argument didn’t disapprove of what Roy Moore did.

It’s not that I disapprove of what Newsom did, because I don’t. I’m glad he did it. It’s that my approval for Newsom’s actions forces me to reconsider my disapproval for Roy Moore’s actions. I do not have a dispassionate argument for approving of the one while disapproving of the other. Neither does the guy quoted above, unless he was saying that Moore should have resigned.

Schoolhouse Rock had best never return to the airwaves. It would be far too complicated.

Comments

[gentlyepigrams]

One of the things I always look at when I examine an act of civil disobedience (which is what both Moore's action and Newsom's action really are) is how the perpetrator takes his or her punishment. Going to jail/accepting removal from office/etc. is the mark of principle. When I get annoyed, regardless of my belief in the cause, is when the perpetrator starts howling about the injustice of his or her own punishment. Well, yes, but the point is that we have to see it for ourselves. It's hard to look like a martyr when you're busy nailing yourself to the cross.

For all that I agree with Newsom's point, I expect him to fare no better under critical analysis in that part of the game than Moore did.

Re:

[kodi]

Wow, that's exactly what I was getting ready to write, only much better stated.

Re:

[bryant]

It's a superb point.

Dude.

[colubra.livejournal.com]

First link doesn't render.
Second link is to an argument about legal behavior by a professional in the field; I didn't know you'd become a professional in the field.
Third link is an opinion about the opinion offered by a blogger about someone else's opinion: this is a meta-meta-meta-map, as it were.
Fourth link is someone's opinion about someone's opinion regarding the oath of office, but provides no support of that opinion.
Er, so, what are you trying to communicate here? :)

Re: Dude.

[bryant]

Ambivalence. Live with it.

The first link's failure to render is noted in the title attribute.

I do not subscribe to the theory that only a lawyer can understand this complicated "law" stuff, so I'm pretty comfortable with the second link and my right to comment upon it.

You may have missed exactly what I said about the third link. Let me repeat it for you: "there’s the obvious comparison to Roy Moore." Hey, look! It's a comparison to Roy Moore, just like I said it was! Then I go on to discuss why I think it's a valid comparison. Said discussion does not, in fact, rely on the opinion about the opinion offered by a blogger about someone else's opinion.

Fourth link: are you seriously trying to argue that the San Francisco Mayor didn't swear to upload the law? You can watch video of Newsom's oath of office right here, though, if you like.

Anyhow, you got any opinion on substance, or are you just gonna meta-criticize? Help me out! Newsom makes a case that he's defending the bit of the California Constitution that bans discrimination. I think that speaks to Constitutional inconsistencies, which is a fair point... but Roy Moore would also defend his actions on the basis of his interpretation of the Constitution.

It is a tough road. I'm ambivalent. Snarky comments are all well and good, but at the end of the day they're useless to me.

Re: Dude.

[bryant]

PS: I am completely sincere. I am very happy about what Newsom did, and I think Roy Moore is a dangerous demagogue. I'm just trying to reconcile my opinions. Frustrating but necessary for me.

Re: Dude.

[that-cad.livejournal.com]

Eh, reconciliation is overrated. ;) In this sorta situation I just accept that "good" (that is to say, my conception of "good") is being done, and it doesn't matter how. Sometimes it's okay to be partisan and illogical for the sake of supporting a cause in which you believe.

Re: Dude.

[ronebofh.livejournal.com]

Unfortunately, not doing things the Right Way often means they need to be done over.

Re: Dude.

[that-cad.livejournal.com]

Yeah, if you're building an office tower or fixing a chair. But sometimes doing things the Wrong Way works too — or at least helps with the "bigger picture." In this case, opening Pandora's Box in San Francisco means that even if its slammed shut a year, two years or ten years from now, the evils are loosed. Giving gay people the right to marry (as in San Francisco) and then taking that right away (as it invariably will be) would greatly wound the anti-gay marriage movement, thereby making it easier to overturn any Constitutional amendment or state laws that may come about or be in place already. Nothing screams "prejudice" and "inequality" like taking away someone's already-existant rights, after all.

Besides, sometimes a dash of "radicalism" can do a movement good. Note that I said a "dash," though.

Re: Dude.

[ronebofh.livejournal.com]

I think you exaggerate, since you can't take away a right that is shown was never there.

I do agree with the dash of radicalism. Also note that i did say "often", not "always".

Re: Dude.

[that-cad.livejournal.com]

I think you exaggerate, since you can't take away a right that is shown was never there.

Yeah, logically you can't, but this is America. It doesn't matter if the right was never there, all that matters is that people perceive the right as having been there. I think many mainstream and somewhat-left-of-center Americans will not see gays losing their marriage licenses and say, "Oh, well, legally they never had a right to get those licenses anyway, so the whole point's moot." Instead they'll perceive the lose of something which had been granted previously; a regression in civil rights.

As they say about nightlife: "The first rule? Perception is reality."

Re: Dude.

[ronebofh.livejournal.com]

Yeah, and possession is nine-tenths of the law. I hope you're right, but i'm still a bit skeptical.

Re: Dude.

[bryant]

You know, this is actually a significantly more optimistic viewpoint than mine, now that I think about it. You don't have to be utterly logical, because public opinion tends towards the public good.

Which is actually part of my justification for anarchism. I believe that the people are capable of behaving well on the whole in the absence of government. I ought to maintain that belief in this case.

Re: Dude.

[ronebofh.livejournal.com]

I think that anarchism doesn't scale well, but that's just a theory.

mea culpa

[colubra.livejournal.com]

It is dichotomous as all hell- do we support the state constitution or do we go against the state constitution?
Do we uphold the spirit of the law or the letter?

The point in questioning Newsom's oath as mayor is wondering exactly what he swore. By example: the USMC swearing to defend the Constitution of the United States might well have led to a legally justified coup d'etat under the Harding administration-- yet a coup d'etat is not constitutional. I wondered if he swore to defend the Constitution of california against all comers, for better or worse, for richer or poorer- or if he swore to uphold the letter of it, or if... see? There's a lot of different meanings to 'swore to uphold the constitution'; how it was said and what was said certainly can provide a lot of flexibility.

To me, you seemed to be pulling these links up to support the veracity of your claims, and these links either A) didn't turn up, or B) were so immerded that they didn't serve as a solid foundation to support anybody's claims. So I was genuinely confused as to why you were quoting them.
My hard-learned skepticism about armchair political analysis definitely came to the fore: I'm sorry that it was offensive. Your analysis seemed, at first, very glancing: now that I understand what you were pulling those links up for, it makes more sense. So- you interpreted what I was looking for accurately, at any rate. ;)

Re: mea culpa

[bryant]

Fair enough, and nah, I'm not offended. I'm just snarky myself. The post is a liberal mixing of metacommentary and my own ambivalence, after all.

Note narcissisme's comment over there, which is perhaps in the final analysis the only answer. Maybe in the end it's a mistake to try and stamp out the ambiguity. It's just that so often I resort to quasi-Rawlsian states of nature in an effort to argue with conservatives -- you should see a recent thread in b0st0n on this subject.

Sigh.

[ronebofh.livejournal.com]

vspope brought to my attention an action by the South Dakota legislature that bans abortion except when the mother's life is in danger. I considered that in the same light as Newsom's civil disobedience; both are flouting a higher authority in the name of what they think is morally correct. I am not certain what the outcome of all this will be, but, like you, i'm troubled even as i'm impressed by Newsom's action.

[tayefeth.livejournal.com]

If Newsom swore to uphold the California Constitution (as his letter claims), and he feels the law is in conflict with the Constitution, IMO, he gets to choose between violating his oath by disobeying the law or violating his oath by ignoring the constitution. As long as he didn't threaten any city employees with disciplinary action if they declined to participate in the process of issuing the licenses, and as long as he deals with the consequences of his choices without whining, I don't see anything wrong with what he's done.

As I understand the Roy Moore situation, he had the choice between violating his oath of office by leaving the Ten Commandments monument up, or obeying it by taking it down. I never heard an argument saying he'd violate his oath of office by taking it down...

Re:

[ronebofh.livejournal.com]

That is a good point. However, some would say that determining what is valid under the consitution is up to the courts and not up to a city mayor.

Ideally, the CA Supreme Court will examine Newsom's actions and Prop 22 and throw Prop 22 out. But i'm not holding my breath.

[carelessflight.livejournal.com]

It’s not that I disapprove of what Newsom did, because I don’t. I’m glad he did it. It’s that my approval for Newsom’s actions forces me to reconsider my disapproval for Roy Moore’s actions.

I don't see why, unless you're prepared to make the claim that neither Newsom nor Moore had any actual effect on society, and that everyone acting out of principle should be approved of or disapproved of equally. That's foolish.

I disapprove of what Moore did not because it violated the law, but because it violated a law that is there for a very good reason. I approve of what Newsom did not because he stood on his principles but because he agrees with mine -- he was protesting a law that is fundamentally unjust.

The members of the Underground Railroad ferried slaves out of the South out of personal moral conviction. Klansmen burn crosses to intimidate blacks out of personal moral conviction. They are not morally equivalent.

We are right and they are wrong. Question that and reexamine that constantly, of course, but if you don't at some level believe it, you have no convictions at all.

Re:

[bryant]

It's not "we are right and they are wrong." It's "the logical foundations of my ethos hold up under examination."

Re:

[carelessflight.livejournal.com]

Sure, but the logical foundation of your ethos shouldn't (IMHO) rely on "Newsom was Good because he committed an act of civil disobedience" and conversely "Moore was Evil because he committed an act of civil disobedience". Granted, that's incoherent -- but civil disobedience isn't an ethos, it's a tactic, like negative campaigning or after-christmas sales. It's ethically neutral, except inasmuch as it has the potential to reduce overall respect for the rule of law.

Civil disobendience is worth it if the underlying ethic for which you commit civil disobedience is a greater good. Newsom's underlying ethic passes this test and Moore's doesn't. Newsom is fighting for equal rights under the law (i.e. for an important principle of a free state), Moore is fighting against the separation of church and state (i.e. against an important principle of a free state). For me it's as simple as that.

Unless I'm missing something else -- but whether we pursue equal rights through civil disobedience, through reruns of Will and Grace, or through the power of prayer, the underlying ethos holds up the same. Civil rights are worth civil disobedience, certainly. Moore was directly attacking the ethics behind the First Amendment. I don't see how it's even remotely comparable.

Re:

[bryant]

Nah, I think you're right on target. Let me try and clarify.

A lot of the criticism of Roy Moore -- my own included -- was simply "he shouldn't have broken the law because he's a judge." That can easily boil down to "Moore was bad because he committed an act of civil disobedience." And I was realizing that I'd fallen into that trap.

[carelessflight.livejournal.com]

I do not have a dispassionate argument for approving of the one while disapproving of the other. Neither does the guy quoted above, unless he was saying that Moore should have resigned.

This, I think, is separate fom approving or disapproving of what each did. In both Newsom's and Moore's case, they (unarguably, imho) violated their oath of office (to different degrees), and both should be brought to answer for this charge. The human beings who then examine the charges against them should consider the underlying reasons for their behavior, and the ethics they applied in choosing their respective civil disobedience, and judge them accordingly.

I really don't see how it is in any way inconsistent to say that both of them violated the law, but one was doing so for a good reason and the other for a bad reason. If two men are each charged with assault, but one was assaulting someone who was burning a cross, and the other was assaulting someone who was entering a synagogue, we are not constrained to judge or sentence them equally.