There are people who take Virginia Attorney General Mark Herring to task for declining to defend a Virginia state constitutional ban on gay marriage. I think he did the right thing if, and that's an important if, he truly believes that the Virginia provision is contrary to the United States Constitution.
Article VI of the U. S. Constitution states:
Thus in cases of conflicts between the U. S. Constitution and a state constitution, the state constitution is invalid. And if an attorney general of a state truly believes that a state constitutional provision conflicts with the U. S. Constitution, he has no duty to defend it. If Virginia's people ratified a Constitutional provision reinstituting slavery, or denying the vote to all but white males, would Mark Herring be duty-bound to defend it? I think not.
A constitional-law scholar like Curt Levey must know this — and in fact, though his post is entitled, “An attorney general's job is to defend the law — no exceptions,” if you read it, he clearly accepts at least one exception. For he says that an attorney general would not be required to defend “a law requiring the arrest and imprisonment of all members of the opposition party without trial.” So it is a matter of where one draws a line. And unless there is a clear Supreme Court decision, each attorney general, and in fact each citizen, has to interpret the U. S. Constitution as he sees fit.
Article VI of the U. S. Constitution states:
This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.
Thus in cases of conflicts between the U. S. Constitution and a state constitution, the state constitution is invalid. And if an attorney general of a state truly believes that a state constitutional provision conflicts with the U. S. Constitution, he has no duty to defend it. If Virginia's people ratified a Constitutional provision reinstituting slavery, or denying the vote to all but white males, would Mark Herring be duty-bound to defend it? I think not.
A constitional-law scholar like Curt Levey must know this — and in fact, though his post is entitled, “An attorney general's job is to defend the law — no exceptions,” if you read it, he clearly accepts at least one exception. For he says that an attorney general would not be required to defend “a law requiring the arrest and imprisonment of all members of the opposition party without trial.” So it is a matter of where one draws a line. And unless there is a clear Supreme Court decision, each attorney general, and in fact each citizen, has to interpret the U. S. Constitution as he sees fit.
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