This essay was authored by Professor D.J. White for Nomocracy in Politics.
Regardless of what side one stands on the issue of same-sex marriage, this one should infuriate anyone with an interest in the rule of law. In our system of government, the people are the sovereigns, the ultimate source of power, from whose decision there is no legitimate appeal. The people of Virginia, in a direct referendum in 2006, amended their Constitution to define marriage as being between one man and one woman.
Virginia Constitution, Section 15-A. Marriage. That only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions. This Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage. Nor shall this Commonwealth or its political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage.”
The amendment was ratified November 7, 2006, and effective January 1, 2007—Added a new section (15-A). Whether that was advisable or not is a separate question.
The recently inaugurated Commonwealth’s Attorney General, Mark Herring, stated Thursday that he thinks the ban is wrong and asked a federal court on Thursday to invalidate the state’s ban on same-sex marriage, saying the ban is unconstitutional. Yes, the Attorney General of Virginia says the Virginia Constitution is unconstitutional, and asked a Federal judge to over-rule the decision of the sovereigns, the people of Virginia.
Of course, this decision rests on a spurious interpretation of the XIV Amendment. As it is currently interpreted, the XIV Amendment means any Federal judge can arbitrarily invalidate any law or procedure that he finds arbitrarily denies what the judge believes should be a right under the Federal constitution. Of course, Raoul Berger demonstrated that the supporters of the XIV Amendment had a very specific limited meaning when debating and ratifying the XIV Amendment. And we will not even get into the argument that the XIV Amendment was never legally ratified. This expansive reading of the XIV Amendment has been with us for a while.
In 1996, the XIV Amendment argument was used to force Virginia to admit women into the Virginia Military Institute. Never mind that VMI had existed in 1868 and nobody in Washington at that time rushed down to Lexington and ordered the Institute to admit women. Now, however, after almost 120 years, we are to believe that gender segregation at VMI is inconsistent with the XIV Amendment. No law can have legitimate meaning beyond the intentions or understanding of the law-givers. No lawmakers in 1868 believed they were ending gender-segregated military education, but somehow this meaning has been poured into the XIV Amendment by unelected, irresponsible judges in 1996. Whether women should be admitted to VMI or not was a separate question. Whether a Federal judge was empowered to order this is the question at hand.
The case is especially troubling, however, from the perspective of nomocracy (rule of law). The Virginia Attorney General’s oath of office reads as follows:
I do solemnly swear that I will support the Constitution of the United States and the Constitution of the Commonwealth of Virginia, and that I will faithfully and impartially discharge all the duties incumbent upon me as Attorney General of the Commonwealth of Virginia, according to the best of my abilities, so help me God.
Mr. Herring has sworn to support two constitutions. The efficacy of our Federal system depends on both. The Founders emphasized that.
It is interesting to consider what a citizen or officeholder should do if something in these two constitutions were to be inevitably contradictory. Say, for example, if Virginia had adopted a constitutional amendment making Virginia a hereditary kingdom. This would clearly violate Article I, Section 9 and Article IV, Section 4 of the US Constitution. Or would it? The latter (Virginia) amendment would have priority of place over the earlier. As far as the other states were concerned, they would still have their prohibitions against royalty and aristocracy in place. At the founding of the republic, the Founders were deeply suspicious of royalty and aristocracy and prohibited them in the new republic. Royalty and aristocracy were prohibited, however, not by the Federal government, but by the sovereigns, the peoples of the several states, through the adoption of the Constitution of the United States, including Article I, Section 9 and Article IV, Section 4. This point is vital in understanding our system of government. In this hypothetical case, the people of the other states could, and should, tell Kingdom of Virginia, “We have prohibited royalty and aristocracy in our republic. We ask you to rescind this decision, or withdraw from the Union.” In this way, the sovereigns of Virginia could keep their sovereignty and the peoples of the others states keep theirs. Additionally, it would not be the agent, the Federal government, disassociating itself from the people of the Virginia (it has no power to do so), it would be the principals, the sovereign peoples of the several states.
Now, let us return to Attorney General Mark Herring. He is faced with what he believes are two mutually contradictory provisions of constitutions he has sworn to support. In one case, however, he has a very clear, plain provision, adopted by the people of Virginia directly in a referendum. In the other case, he has a new, tortured and vague interpretation (one that lacks the people’s imprimatur) of an amendment adopted 125 years ago, in support of which no lawgiver at that time stated he was doing what latter-day judges now say he was doing. The constitutional contradiction is neither apparent nor real. The Virginia constitutional amendment is more recent, geographically closer to the Attorney General and Virginia pays his salary. Thus, the Virginia amendment should have his loyalty. He was inaugurated two weeks ago. He asked for the job knowing well what Virginia’s Constitution says. Further, he supported the ban when he was a legislator, so his prior stance was misleading the voters during his election. Now, however, having gotten the job, he does not want to do the job. In fact, he asked a Federal judge to thwart him in the execution of his job and contradict his sovereigns.
If ever there was a case begging for impeachment in Virginia, this is it. And, this is not a pro- or anti-same sex marriage controversy, if the positions on same sex marriage were reversed (i.e. same sex marriage had been explicitly adopted by referendum into the Virginia Constitution and the Attorney General sought to get a Federal judge to outlaw same-sex marriage), the same constitutional, self-government issue would remain, and the Attorney General would be just as wrong.
What is particularly troubling about this case is that the Attorney General obviously does not like what the Virginia Constitution says, yet he seeks the job of Attorney General anyway. If one does not like what the Constitution says, the office to seek is state legislator, where one can introduce a bill to get the issue on the ballot next fall and let the voters decide. The voters might just reverse themselves (The vote was 53%-47% in 2006). At least following this path, Herring could have some semblance of integrity left. As it is now, he has none.
Professor D.J. White teaches History at the Virginia Military Institute, and he is a Nomocracy in Politics Contributor.
 Raoul Berger, Government by Judiciary, (Indianapolis: Liberty Fund, 1997).
 Forrest McDonald, “Was the Fourteenth Amendment Constitutionally Adopted?” Georgia Journal of Southern Legal History, Vol. I, No. I, Spring/Summer 1991.
 “Leges posteriors priores contrarias abrogant” Sir William Blackstone, Commentaries on the Laws of England, Volume 1, (London: University of Chicago Press, 1979), p. 59.