Wednesday, July 1, 2015

The end of the American experiment

I had to take my time with my reaction to the Supreme Court’s decision in Obergefell v. Hodges (576 US __ [2015]), because there were some comments and criticisms that led me to suspect it was worse than I thought it would be. The suspicion was confirmed.

As expected, Associate Justice Anthony Kennedy authored the decision, which is the latest in the logical progression from Lawrence v. Texas (539 US 558 [2002]) through United States v. Windsor (570 US __ [2013]), the majority opinions of which Kennedy also wrote. Also as expected, Kennedy premissed his opinion on the dubious concept of “substantive due process”, the pre-eminent rationale for judicial legislation, and invoked the “equal protection” clause without bothering to explain — as, indeed, none of his decisions explain — how homosexuals qualify as a “protected class”. (Sorry, neither “Well, duh!” nor “Because I said” is a valid legal argument.)

In its way, Obergefell was an even greater assertion of SCOTUS power than was Windsor. As I explained at the time, Kennedy justified striking down the Defense of Marriage Act (DOMA) by arguing that the right to define marriage lay with the States, not explaining how the State’s authority to confer State benefits could rob the Federal government of its authority to decide who gets Federal benefits. Now, however, the States can exercise their authority only until the Court develops a “better informed understanding” (slip opinion at 19), at which time it can impose a school solution on everyone.

For Alexis de Tocqueville, the great French commentator on early America, the great danger of democracy was “tyranny of the majority”; i.e., the insufficiency of institutions to protect individual rights. The problem for the last few decades has been exactly the opposite — aristocracy, the rise of a self-selected élite willing to frustrate the democratic process, distort the plain meaning of the Constitution, and violate long-standing political rights in order to impose its superior mores. Obergefell signals the triumph of that élite and the functional advent of limited self-government.

To get a full picture of the disaster that is Obergefell, the dissents you need to read are Chief Justice John Roberts’ and Associate Justice Clarence Thomas’. AJ Antonin Scalia’s Pacinoesque rant, while savagely witty in spots (indeed, it’s not so much a dissent as a brutal fisking of Kennedy), ultimately offers us only broad conclusions rather than minute dissection; AJ Samuel Alito’s opinion, while well-written, is hardly exhaustive, and can be reduced to the simple declaration, “Everything I said in dissent in Windsor applies here.”

Here’s the root of the problem: The foundation John Marshall laid down in Marbury v. Madison (5 US [1 Cranch] 137 [1803]) for the power of judicial review came from the twin facts that the Constitution is a written document separate from the rest our laws and that it is “the highest Law of the land” (Article 6 Section 2). Therefore, as Marbury held, the government can’t pass legislation in conflict with the Constitution. But because the Constitution is a written document, it says some things and leaves other things unsaid.[1] By rights, then, the Supreme Court shouldn’t forbid, permit, or require anything the Constitution doesn’t forbid, permit, or require.

This poses a formidable wall, however, when the justices object to a provision in a law but have no obvious grounds on which to base a reversal. From the very beginning, judges have been tempted to look beyond the bounds of the written Constitution to find “fundamental” or “higher” laws to which we must be bound but which never got included in the framing. This is where the concept of “substantive due process” comes in. “The theory is,” Roberts explains, “that some liberties are ‘so rooted in the traditions and conscience of our people as to be ranked as fundamental,’ and therefore cannot be deprived without compelling justification.” (Slip opinion at 49-50, cit. Snyder v. Massachusetts, 291 US 97 [1934], 105.)

An early version first appeared in Dred Scott v. Sandford (60 US 393 [1856]), when the Court used the Fifth Amendment “due process” clause to strike down a law forbidding slavery in the territories. Had not the Civil War intervened, a later Court could have used the precedent to strike down anti-slavery laws in the States. The most undisciplined incarnation of it was in Lochner v. New York 198 US 45 [1903]), which struck down a law setting maximum hours for bakery employees; as Roberts relates in his dissent, Lochner led to decades of judicial abuse. Strikingly, Kennedy cites Lochner with an almost gleeful abandon in Obergefell.

The flaw is in the misconstruction of the word liberty in the “due process” clauses. As Thomas points out in detail in his dissent, the “due process” clauses were intended to enact the Magna Carta’s Chapter 39 protection against executive arbitrariness (slip opinion at 81-83). In the clauses, liberty is not a synonym for rights or entitlements, but rather an antonym of arrest and imprisonment. No putative fundamental right’s degree of desirability can turn a guarantee of fair procedure into a limitation on a law’s content, let alone an ever-full cornucopia of fundamental rights; “substantive due process”, as one person has put it, is an oxymoron akin to “pastel green redness”.

Even as Roberts mourns the abuse of “substantive due process”, he acknowledges the utility and desirability of the “fundamental rights” concept (“Rejecting Lochner does not require disavowing the doctrine of implied fundamental rights …;” slip opinion at 52). But the fact is, the “fundamental rights” concept is every bit as corrupting as is “substantive due process” precisely because it invites the Court to read a theory of rights into the Constitution. Roberts and others quote Oliver Wendell Holmes’ scathing remark from his Lochner dissent: “The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics” (Lochner at 72; slip opinion at 51). But neither does it enact Robert Alexy and Julian Rivers’ A Theory of Constitutional Rights.

The Court may try to persuade itself that a particular right is “implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed” (Washington v. Glucksberg, 521 US 702 [1997] at 721). But that’s still to impose the Court’s theoretical construct on what’s ultimately a practical and empirical document, to read the preferences of nine lawyers into a Constitution drafted, ratified, and amended over time by majority rule.[2] Roberts himself admits, “Even a sincere profession of ‘discipline’ in identifying fundamental rights ... does not provide a meaningful constraint on a judge, for ‘what he is really likely to be “discovering,” whether or not he is fully aware of it, are his own values’” (slip opinion at 54-55; cit. John Hart Ely, Democracy and Distrust: A Theory of Judicial Review [1980], p. 44).

Perhaps some degree of theorizing is unavoidable. The power of judicial review as defined by Marbury is itself an “implied” power, not explicitly stated by the text of the Constitution, resting purely on the Court’s say-so (albeit gradually accepted by several generations of Americans). But this simply bolsters the case for judicial restraint. If anything, it makes the case for a Constitutional amendment establishing the power and boundaries of judicial review; without it, the conclusion is easy to reach that judicial review is itself an illegitimate power.

The Constitution doesn’t exist simply to bestow individual rights and benefits. Its primary purpose is to give practical shape and form to representative democracy; and neither function can be more important than the other. Even a declaration of unconstitutionality based on the explicit text is by definition anti-democratic, albeit in favor of a right or limit already granted by the will of the people, and in that sense pre-approved. The people want individual rights, but they also want majority rule; those who praise the Court as a “countermajoritarian force” in the wake of Obergefell or Windsor most likely damned the Court’s frustration of the “will of the people” in the wake of Burwell v. Hobby Lobby (573 US __ [2014]) — probably with no sense of cognitive dissonance.

Alito mourns, “[The majority opinion] shows that decades of attempts to restrain this Court’s abuse of its authority have failed. A lesson that some will take from today’s decision is that preaching about the proper method of interpreting the Constitution or the virtues of judicial self-restraint and humility cannot compete with the temptation to achieve what is viewed as a noble end by any practicable means” (slip opinion at 102-103).”

So much is so. But when one considers the degree to which public analysis of SCOTUS rulings ignores the actual verbiage of the opinions, both majority and dissenting, in favor of either indiscriminate praise of the majority’s enlightened sensibilities or vicious attacks on their political, racial, sexual, economic, and religious biases, it’s not hard to conclude that the American people no longer particularly care “what the Constitution really says”, or whether any such exercise truly respects the democratic process. The people are, in the main, quite satisfied for an unelected and unrepresentative élite to tell them what justice is and what rights they ought to have.

In other words, we now live under an aristocracy willing to allow us to go through the motions of representative government, so long as it’s their morality we encode in law. For all practical purposes, the Constitution is a dead letter, our institutions merely a legacy from when it still had some relevance, permitted us so long as we conform. Causa finita est: the American experiment has failed.


[1] From here I treat the amendments as part of the original document.
[2] This is a very neglected point: The rights that the Constitution does explicitly mention are, pragmatically speaking, the rights the people want for themselves; the arduous process of amending the Constitution guarantees that the rights and powers the Constitution establishes are those overwhelmingly supported by the sensus populi.