By: Terry Eastland

Mar 17, 2014, Vol. 19, No. 26

In a speech the other day to state attorneys general, the U.S. attorney general, Eric Holder, offered an ideal job description for himself and his state counterparts: “not merely to use our legal system to settle disputes and punish those who have done wrong, but to answer the kinds of fundamental questions—about fairness and equality—that have always determined who we are and who we aspire to be.” This is what “all justice professionals are called” to do, said Holder, leaving us to wonder what we the mere people are supposed to do.

Diving into one aspect of our legal system, Holder observed that, as with the U.S. federal attorney general (himself), so it is with state attorneys general: They are not obligated to defend laws that they deem unconstitutional. Even so, he added, decisions not to defend a law “must be exceedingly rare.” Yet he noted with approval that five state attorneys general (all Democrats) had recently made such a decision, each concluding that his state’s ban on so-called same-sex marriage is unconstitutional and therefore indefensible.

Holder’s speech, a mini-version of which he shared the day before with the New York Times, was a not-so-subtle preachment that attorneys general still defending such bans should declare them unconstitutional and abandon their defense—in other words, disavow laws they are sworn to enforce. The Republican state attorneys general, some 24 in all, demurred, with the South Carolina attorney general, Alan Wilson, issuing a statement saying the administration was “ignoring the rule of law.”

Read the full article, here.