In response to our debate here, Mr. Kowal has made an effort to explain his political theory. It’s worth examining as another case study in my on-going demonstration of why there are no good arguments against same-sex marriage.
Our Constitution was designed for the purposes of achieving a secure, ordered liberty to help perpetuate the existence and prosperity of the states, in turn founded upon the principle of self-rule and civic virtue. To prevent a decline into “mob rule,” counter-majoritarian measures were adopted into the Constitution… While the people wished to avoid mob-ocracy, they certainly did not desire to trade it for aristocracy. Thus, while the Court was set up to be independent, it could not be said that the Court could act faithfully according to the purposes for which it was established in the Constitution if it purported to go too far afield of the text of that Constitution, which provided the only evidence of its instructions of the sovereign whom it served.
I agree that the Supreme Court acts illegitimately if it looses itself from the Constitution. But the continuing problem that Mr. Kowal still fails to deal with is the fact that the Court is set up to be the arbiter of what the Constitution means. Its declarations of constitutional meaning are, in our constitutional theory, authoritative statements about what “we, the people” actually are saying in the Constitution. If the Court is the authoritative voice of the people in constitutional interpretation, how can we know when it in fact gets it’s interpretation of the people’s meaning wrong?
My answer is that we can’t. Not really. It’s simply an irresolvable problem of constitutional order. There are no perfect systems.
Mr. Kowal, however, seems to think that he can know when it’s happened. He’s apparently seen it happen in Perry v. Schwarzenegger. But he’s just a single private citizen. Is his view truly more representative of “we, the people”‘s constitutional intent than Judge Walker’s, or is he in fact just representative of that mob-ocracy?
It is fascinating that Mr. Kowal recognizes the potential for mob-ocracy, but directs all of his concern and thought to the danger of judicial aristocracy, giving no thought at all to the question of whether he might be part of a mob. Consider James Madison’s description of a faction, in Federalist 10.
By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.
Is Mr. Kowal not in fact adversed to the rights of certain other citizens? Is he not, by Madison’s own words, at least plausibly enough merely part of a faction that he ought to at least give serious consideration to that possibility?
After all, who is more factional, who is more likely to be a mere mob–those who support legal equality for the discrete minority or those who would deny equality for that minority? How many times in history have we looked back at those who would deny equality and liberty for a minority and not realized with the benefit of hindsight that they were indeed the mob, and not representative of the spirit of the Constitution? I am not sure we have ever said, “Those who sought to denly liberty were right.” Rather, those who would deny liberty have always been recognized, ultimately, as being the mob.
And yet Mr. Kowal is utterly confident that this time, the opponents of legal equality are not a faction, not a mob. The only possibility–the only danger–in his view of the matter is judicial aristocracy.
Continuing with his theory:
But neither could the Court fulfill its counter-majoritarian function if it simply bowed to the present will of the people. Equally unacceptable would be an overly narrow view of the text as extending only to, say, what those who ratified the amendments intended by them. In this regard, perhaps the Fourteenth Amendment would only apply to blacks, because they were the direct beneficiaries of that Constitutional language in 1868? Surely not. While the ratifiers had blacks in mind when they enacted the words “life, liberty, or property,” and “equal protection,” they certainly meant these as ideals that extended beyond blacks, and beyond those Americans then living.
But then we’re back to the first problem: How does the Court extend these abstract principles without becoming an aristocracy?
And how does the public resist the extension of those principles without becoming a mob? Mr. Kowal seems less concerned about that question. But assuming each problem is equally unsolvable, we have to ask which is more dangerous: an aristocratic judiciary that illegitimately forces us to grant too much equality, or a mob that illegitimately denies enough equality.
They’re not equal in probability: History shows that rights-denying mobs are a more regular threat than an aristocratic judiciary that requires too much equality. (Has the latter ever been observed?) And they’re not equal in harm: An illegitimate denial of equality is a greater harm than too much equality.
The answer goes back to the purposes for which the Constitution, and its servant, the Court, were established: to maintain a secure, ordered liberty, with proper respect for the people’s right to democratic self-rule. In consideration of these “prime directives” that the Court must all equally respect, it should become clear that the Court cannot extend the “liberty” principle or the “equality” principle, for example, without stamping out completely the right to democratic self-rule.
Indeed, as I briefly discussed here, our republic could not long last if the people’s right to govern themselves was stripped away. True, this will mean that some infringements on liberty must be tolerated. No one has ever pretended that ours is a perfect system of government, and most sober minded folks would concede that no such system exists anyway.
Thus, the question is, would the regular exercise of self-rule, which frequently (if not by definition) infringes on some “liberty,” “property,” or “equality” interest, endanger the perpetuation of the republic? In the case of racial distinctions, quite possibly. Thus, the “strict scrutiny” doctrine. In the case of same sex marriage? Seems highly unlikely. Thus, deference to the regular perpetuation of self-government must be given, even despite the fact that the abstract notion of “justice” might command a different result.
There is some element of truth in here, but in its explication and purpose it is fatally flawed. Who is suggesting that “the people’s right to govern themselves” be completely “stripped away”? The issue at hand is the rights of homosexuals to marriage equality vs. the rights of the self-governing people to deny that equality. There is a large number of possible decisions that are denied to the self-governors. We cannot deny religious freedom, we cannot deny free speech, we cannot impose religious obligations, we cannot restrict the freedom of the press, we cannot ban the owning of guns, we cannot authorize the government to engage in warrantless searches, we cannot authorize the imprisonment of people without a trial, we cannot take their property without due process and compensation, etc. Yet none of these seem to endanger the right to self-governance. What is Mr. Kowal’s apparent line in the sand, or at least emergency warning marker? The end of the self-governing people’s right to deny marriage to homosexuals. Why that is a particular threat to self-governance he does not explain. Nor does he demonstrate that the citizens of the Commonwealth of Massachusetts, or of Iowa, or other states where same-sex marriage was imposed by judicial decision, have in fact become appreciably less-self governing. They still have authority over taxes, land-use decisions, education, economic development, etc. This is an important point, because while Mr. Kowal’s argument that a run-away judiciary could potentially destroy self-governance is arguably correct, he’s going beyond that argument to suggest that this particular decision is a particular threat to self-governance that we must take special note of. It’s an extraordinary claim that requires at least ordinary evidence, but for which he provides no evidence at all.
And notice his particular standard for review: “would the regular exercise of self-rule, which frequently (if not by definition) infringes on some “liberty,” “property,” or “equality” interest, endanger the perpetuation of the republic?” In his theory, only those exercises of self-rule that “endanger the perpetuation of the republic” can legitimately be struck down by the courts. This is a weaker standard of review than the rational basis test. It eviscerates the very concept of an inalienable right–only those rights whose deprivation endangers the on-going existence of the republic are protected from the majority faction’s control.
An example he gives in his reply to my comment refers to the Civil War. Slavery indeed led to the Civil War, which indeed threatened the perpetuation of the republic. But I can think of any number of equal rights violations that would not present such a similar threat. The deprivation of the rights of Christian Falangists to have a political party. The deprivation of the rights people under the age of 16 to a jury trial. The deprivation of the right of ministers to hold public office. In a nutshell, his argument implies (not him personally, mind you) that the only rights that cannot legitimately be infringed are those whose infringement will so outrage people that they’ll violently render the public asunder. To be fair, we could help him out by saying also those deprivations of rights that destroy self-governance, such as the right to vote. But would depriving Hmong refugees turned citizens really threaten self-governance in general? Given what a small portion of the population they are, presumably not.
In fact his argument does not even successfully defend racial equality. It is very disturbing that he writes that his standard only “quite possibly” would prohibit racial discrimination,* but as a logical consequence of his standard, “quite possibly” is too strong a statement. Consider that slavery very nearly brought down the nation, and as an issue for the union under the Constitution, it was only an issue for 75 years (from ratification of the Constitution to ratification of the 13th Amendment). By contrast, legal racial segregation post-slavery continued for a minimum of 87 years (end of Reconstruction to passage of 1964 Civil Rights Act–an argument can be made for beginning with the 14th Amendment and using a later end date, but I’ll take the conservative figure). During that 87 years, did segregation threaten the perpetuation of the republic? Not by any stretch of the imagination. So Mr. Kowal’s standard allows racial discrimination, even though it is clearly prohibited by the Constitution. By his standard the Court would act illegitimately if they struck down racial discrimination laws because such laws were not a threat to the republic’s continued existence.
The problem for Mr. Kowal is that he is actively seeking an interpretation of the American political system that allows the majority to deprive the minority of equal rights. But in a system founded on the principle of political and legal equality, that is hard to do without creating some perverse results. It is true that we have often failed our principles, but those events are in fact seen as failures, not as justified policies of a self-governing people.
Mr. Kowal argues that the purpose of our system is “to maintain a secure, ordered liberty, with proper respect for the people’s right to democratic self-rule.” But what does he mean by “ordered liberty”? Is he cadging the term from Justice Breyre’s execrable book? It sounds as though he is, with his emphasis on that term and on the concept of self-governance (although it would be unusual indeed for an apparent conservative to be following Breyer’s lead). In my view, Breyer’s vision of “ordered liberty” is a vision that guts constitutional guarantees of rights and makes them subordinate to the will of the people. He argues for a Constitution not of secure rights but of rights that are secure unless the people really really mean it when they violate them. Engage in a sufficient amount of deliberation, and the end result is thereby legitimate.
But in discussing the purpose of our system, where are the words of the Declaration of Independence, that we have “unalienable rights” among which are “life, liberty, and the pursuit of happiness,” and that the purpose of government is “to secure these rights”? Self-governance was not an end in itself for Jefferson–liberty for individuals was the end. In our Constitution’s preamble itself, we again see that the purpose is in part to “establish justice” (Kowal complains that too much justice is a danger to the union) and “secure the blessings of liberty.” To Mr. Kowal, liberty appears to mean the liberty of the majority to deprive the minority of its liberty and its equality. Liberty appears to equal self-governance, and nothing more. Liberty applies to the majority faction, and no one else, unless applying it to them is necessary to prevent the destruction of the union.
These are the problems one runs into when seeking to justify discrimination. And the assertion that the American system was set up with the ideal of allowing the majority to discriminate against the minority is perhaps the greatest perversion of the Founders’ guiding principles that I have ever heard.
*This, coupled with a statement on this blog that Brown was “problematic” makes me wonder if in fact Mr. Kowal is not committed to racial equality before the law.