Huckabee Schools MSNBC on the Role of the Judiciary

Mike Huckabee appeared on MSNBC’s Morning Joe on Thursday to comment on Kentucky clerk Kim Davis, and the hosts must have regretted inviting him because he made them look like fools on the issue of the Supreme Court and judicial tyranny. It’s really worth watching the full segment.

MIKA BRZEZINSKI: Why don’t I ask you about the Kentucky clerk? You made some comments, ‘Thank God for her.’ Carly Fiorina had a very different point of view about this and it was more about rules, the rule of law, the supreme rules of law, and you just talked about rules, and how people play by different rules and it seems to me that you are critical to that type of behavior. I’m wondering why is it okay for this clerk to do what she is doing, given that this is the law of the land?

MIKE HUCKABEE: Well, when you say it’s the ‘law of the land’, can you quote the statute that’s been passed by the people’s representatives? No. The only law she is following is the Kentucky law, which by constitutional amendment defines marriage as a man and a woman. The specific form that she is required to fill out for a marriage license specifically requires ‘male’ and ‘female’. Now, if the Kentucky legislature decides that they agreed with the Supreme Court and they changed the laws of Kentucky, that’s a whole different thing. We’re bordering on judicial tyranny here.

JOE SCARBOROUGH: But Governor, you know that the Supreme Court doesn’t have to have Congress pass statutes for their interpretations of the Constitution that immediately becomes law of the land and supersedes all state laws. Whether I agree with you or not on states being able to regulate this or not, anything that Kentucky passed becomes irrelevant as soon as the Supreme Court of the United States makes a constitutional determination, right? That’s basic constitutional law.

HUCKABEE: That’s not, no, that’s not true. Look, you would have hated Lincoln, because he disregarded Dred Scott 1857 decision that said black people weren’t fully human. He disregarded it because he knew that it was not operative. It was not logical. Jefferson warned against judicial tyranny, which he said would be the case if we ended up allowing a court ruling to become law without the other two branches coming in to agree. When I was governor, and the state Supreme Court made a ruling on school finance, we didn’t just start writing new checks the next day. The legislature had to come up with a new funding formula, I signed it, and then we ordered the Department of Education to send new checks. The Supreme Court can determine something by way of review according to Marbury v. Madison, but they can’t implement it without enacting and enabling legislation. And I think we’re getting close to what Jefferson said when he said that if we allow the judicial branch just to make up law without the people’s elected representatives, you turn the Constitution into a thing of wax. And that’s why I believe it’s time for us to have a real clear understanding of what should be something that we learned in 9th grade civics: That the Supreme Court is not the supreme branch, it’s the Supreme Court, and it certainly is not the Supreme Being. It cannot overrule the laws of nature and the laws of nature’s God.

BRZEZINSKI: Hm. So I guess I’ll try this a different way. I want to be careful because I don’t want to create a situation in that specific courthouse or add to it. But why ‘thank God for her’? I mean, there’s a lot of judgement being cast on both sides of that story, which I don’t want to get into, but it’s pretty hypocritical. Um, why ‘thank God for her’, and do you actually want to see other court clerks doing this?

HUCKABEE: Well, I want people to stand up for their convictions. I want them to have the courage of their convictions, not to acquiesce to a ruling that even —

BRZEZINSKI: Do you want them to follow the law?

HUCKABEE: Well, again, I would say to you that it is the interpretation of five unelected lawyers on the court – that’s the why John Roberts referred to them in his scathing dissent, which was absolutely brilliant —

SCARBOROUGH: But those lawyers are Supreme Court justices.

HUCKABEE: They most certainly are.

SCARBOROUGH: Do I decide what laws I want to follow and what laws I don’t want to follow?

HUCKABEE: No. We don’t have that option, but I’m asking you: Tell me the statute, tell me the specific law, other than the law that that clerk is operating under, which defines what the marriage licenses say —

SCARBOROUGH: Well, there wasn’t a statute after Brown v. Board of Education that was passed, but it became the law of the land immediately thereafter, and Dwight Eisenhower got the National Guard enacted because that was the law of the land. You didn’t have Arkansas or Alabama or Georgia pass state statutes. You had the Supreme Court of the United States defining what the Constitution said. Same thing occurred after Roe v. Wade in 1973. Again, whether we agree or disagree with these decisions, neither we, as conservatives, or our duly elected officials in the state government have the right to decide what Supreme Court decisions they’re going to follow and which ones they don’t follow. Is that correct, Mike?

HUCKABEE: Joe, you have to have enabling legislation. Let me just remind you that if what you just said is correct, then Abraham Lincoln should be vilified as a lawless president because he ignored Dred Scott and he signed the Emancipation Proclamation, because he knew innately that slavery was fundamentally wrong. And he refused to acknowledge the Supreme Court’s decision, as did Jefferson on the Alien and Sedition Act. These are presidents who realized that the court was one of the three branches of government, and it did not have the power to overrule the other two. I just think it’s time for us to have a serious reminder of the structure of our government was three equal branches. And the court, if it is allowed to make a ruling and we just throw up our hands and say, ‘Oh, it’s the law of the land, there’s nothing we can do, nothing we can say we have to just fall in line and accept it without even questioning it’ —

SCARBOROUGH: But there is something that we can do. We can – if I’m a conservative, and I believe that this, as I do believe, that this should be handled by states and not the federal government, I can vote for somebody like you, who I know will select justices who will have the same viewpoint as me. I have that power every four years to cast that vote, but I don’t have the power to decide which Supreme Court decisions I’m going to agree with and which ones I’m not going to agree with.

HUCKABEE: It’s different to agree with them, but to enact them without any enabling legislation — Joe, I go back to my point, if I had simply said that the Supreme Court made an education finance decision in my state, and I just arbitrarily started writing new checks, my question is, how do I do that without the people’s elected representatives — the legislative branch with the power of the purse — how do I exercise the power of the sword, which is the executive branch, without the power of the legislature? That’s what we need to realize. We have one branch of government that is overruling the other two. And what Roberts said in the dissent in this decision was that you in essence have five unelected lawyers making complete rule — Jefferson called it an oligarchy — over all of our government. That’s not how we function as a government. And that’s why I say this Kentucky clerk is standing tall for what she believes and for what the law is in her state.

MIKE BARNICLE: Governor, I have your basic non-lawyer’s question for you. The clerk, Kim Davis, and the licenses – are the licenses hers, or are they the state’s?

HUCKABEE: They belong to the state, and the state specifically requires her to fill it out with ‘male’ and ‘female’, and until they change that, I don’t see how you can ask her to violate what is on that form and the Kentucky constitution, which is explicitly clear.

BARNICLE: Are driver’s licenses or fishing licenses next? I’m not going to give a driver’s license to someone that’s same-sex marriage? I mean, where does it end?

HUCKABEE: I don’t know that there’s anything — you know, that’s a real stretch to go there, because I don’t think you’re required to list your gender in order to get a fishing license. But we’re talking about marriage. We’re talking about an institution that has survived and served this civilization for over 5,000 years with one definition. A redefinition of marriage is a pretty serious jump, and there’s nothing in the U.S. Constitution in which the federal government has any role in marriage. Nothing whatsoever. Which was one of the points in the dissents of all four of the dissenting justices. In order to reach this decision, they had to go out and pick up words like ‘spirituality’ and ‘intimacy’ — those aren’t constitutional protections! And they made up a law. And that’s why I believe that this case in Kentucky may end up being the first case in which a person, for their Christian convictions, is going to be put in jail because they refused to bow to a decision that is suspect at best.

Thomas Valentine is a researcher for APIA and a junior at the Franciscan University of Steubenville.