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.
