Ordered Liberty for Me, not Thee

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.

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*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.

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About J@m3z Aitch

J@m3z Aitch is a two-bit college professor who'd rather be canoeing.
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28 Responses to Ordered Liberty for Me, not Thee

  1. Michael Heath says:

    Courts are in no way aristocracies when they defend the rights of people against unconstitutional encroachments of power by the government or the ‘temporal passions’ of a simple majority (to throw another relevant anti-majoritarian J. Madison quip in the soup). Even if the court wrongly decided to defend a particular right relative to a correctly exercised government power; that still wouldn’t make the courts an aristocracy but instead merely wrong.

    I suppose ‘aristocracy’ would be a close enough term to not bear objection if one was defining the courts when they unconstitutionally defend the rights of some people at the expense of the vastly superior rights of other people (e.g., if a retail owner could refuse access to certain customers because of the business operator’s perception of certain customers’ skin color or sexual identification). However rights of one group at the expense of the rights of another group was not the issue in this case, which the findings of fact discovered in Perry clearly proved.

    Perry was instead primarily focused on whether the government, in this case CA through the will of its people, had constitutionally supported powers to deny gay people their due process and equal protection rights. Anyone who has read Perry can easily discern the case was not even remotely close. The state government of CA and its relevant ‘mob’ of voters do not enjoy such powers; they were clearly violating those gay people’s rights – rights which are specifically protected under the constitution though they didn’t need to be IMHO – the 9th would have sufficed if the courts ever decided to stop ignoring it. I have to go back to Kitzmiller v. Dover to find a comparably one-sided case where I’d argue Perry beats even Kitzmiller on that count.

  2. Matty says:

    Aristocracy to me implies two things hereditary power and extra privileges of rank.

    Obviously we can dismiss the first so Mr Kowal must be talking about the second but just what are the privileges involved? They cannot be the rights associated with marriage because those have been expanded to more people not restricted to an aristocracy. The only way I can make sense of this is that he is objecting to judges claiming for themselves the privilege to decide court cases. This is a consistent position if unusual (you could have a system where everything was decided by a jury) but has nothing in it specific to the issue of same sex marriage. So, Mr Kowal do you object to judges having more power than average citizens to decide court cases on principal, or do you think it is only aristocratic privilege when they claim the power to rule a way you don’t like?

  3. Tim Kowal says:

    Mr. Hanley, you are a hard taskmaster, putting me to the work of responding to such a lengthy analysis on a Monday! Here goes…

    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.

    I don’t think I gave “no thought” to the problem of “mob-ocracy.” I noted that the mob is counteracted by the independent judiciary, but that the problem there is that, without some conceptual limits, an independent judiciary may trod over self-rule altogether. The aim of my proposal was to suggest a model of conceptual limits to the judiciary.

    I would also acknowledge that there must be some “give in the joints” in the expression of political power—both by the people and the courts. Sometimes the people will act as a “mob” when they enact legislation out of step with natural law; sometimes the courts will act as an “aristocracy” when they issue rulings out of step with right reason. But not every such misstep is subject to being undone unless it meets a certain threshold.

    For example, the president may be impeached only for “high crimes and misdemeanors.” But are “low” crimes and misdemeanors not still an abuse of Constitutional power? Surely they are. But the Constitution does not aim to root out all manner of injustices and abuses of power. It is not designed to squelch every act of an illegitimate “mob,” to the chagrin of those of us with more finely tuned senses of justice.

    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.

    They are also not equal in nature. The right of self-rule is necessary to establishing a system of government and civic order that the people will respect. An independent judiciary was established to prevent against the exercise of particularly wrongheaded and dangerous lawmaking power. These two functions are fundamentally different in nature and purpose. I submit it is misleading to compare one as leading to more “equality” than the other.

    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.

    It certainly sounds overblown the way you put it, but I did not put it that way. The problem is not Perry’s conclusion, but the rule used to get there. For the first time, that court held that no private morals could form a legitimate basis for any law according to the Fourteenth Amendment. That rule, faithfully applied, would lay waste to laws concerning suicide, euthanasia, animal cruelty, bestiality, prostitution, polygamy, obscenity, public sexual acts, human cloning, environmental protection, and on and on. Removing the people’s right to determine their civic order with respect to these important values would severely alter and undermine the people’s perception of and respect for their laws and their government. Laws that do not reflect the people’s values are laws that are less likely to command the people’s respect. (Ironically, if the laws commanded less respect than they do, the struggle to achieve acceptance of same-sex marriage through the law would not be as hard fought as it is.)

    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.

    You suggested this in the comment to my post here, which I responded to as follows:
    ***
    Judicial acts striking down laws that make racial classifications are at the zenith of justifiability: it comports with the original understanding of the Fourteenth Amendment, and it addresses a social ill closely connected with a dangerous and deeply embarrassing flaw in our republic’s history. (On this note, I should point out that my proposal in this post was designed as a “companion” to originalism—i.e., where the original meaning is difficult or impossible to be discerned, resort to this proposed theory may be made.)
    ***

    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. . . .
    . . . .
    . . . . (Kowal complains that too much justice is a danger to the union.)
    . . . .
    . . . . 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.

    James, this is twisting things quite badly so as to make me out a villain. You know quite well I did not say these things.

  4. Jim51 says:

    Mr. Kowal,

    “For the first time, that court held that no private morals could form a legitimate basis for any law according to the Fourteenth Amendment. That rule, faithfully applied, would lay waste to laws concerning suicide, euthanasia, animal cruelty, bestiality, prostitution, polygamy, obscenity, public sexual acts, human cloning, environmental protection, and on and on.”

    This is not what the court ruled. In that particular regard the judge ruled that:

    “Moral disapproval alone is an improper basis on which to deny rights…” (‘alone’ is a key word there, which somehow fell out of your recharacterization)

    “The state does not have an interest in enforcing private moral or religious beliefs without an accompanying secular purpose.”

    If that rule is faithfully applied it will not lay waste to all of the classes of law that you mention. In cases where it does create problems for some of that legislation it is probably correct that it do so. What was conspicuously missing in this case was “an accompanying secular purpose” substantiated with acceptable evidence as arguably true.

    “The problem is not Perry’s conclusion, but the rule used to get there. ”

    The “rule” that “Moral disapproval alone is an improper basis…” was not the only argument used to reach Perry’s conclusion. And it seems quite clear to me that Perry’s conclusion is, in fact, a primary problem for you.

    Jim51

  5. Michael Heath says:

    Tim Kowal:

    The problem is not Perry’s conclusion, but the rule used to get there. For the first time, that court held that no private morals could form a legitimate basis for any law according to the Fourteenth Amendment. That rule, faithfully applied, would lay waste to laws concerning suicide, euthanasia, animal cruelty, bestiality, prostitution, polygamy, obscenity, public sexual acts, human cloning, environmental protection, and on and on.

    Perry wasn’t about creating new government protections of rights such as bestiality; it was instead primarily a discovery that California was unequally denying an already protected right – which is perfectly contra to both the original intent and plain meaning of the 14th Amendment. Protected in the sense that holdings prior to Perry acknowledge that marriage is a ‘fundamental’ right that the government can’t prohibit without due process and where protections and restrictions must be applied equally and with due process.

    Mr. Kowal,

    I advise actually reading the rulings and also consider what constitutional scholars understand about the Constitution rather than using conservative politicians’ talking points to defend political positions as you repeatedly do here. Those arguments have been around a long time and have long since been convincingly falsified, they’re as equally compelling as arguing for young earth creationism. They might do well where the audience is misinformed but they won’t suffice in forums where people actually study the Constitution.

  6. Anna says:

    Mr. Kowal – Following this thread and the previous one quite closely, I am appalled that during debate you try to make yourself out to be a victim. You came to this blog, a place where bloggers are highly educated and equality and rights are taken very seriously. Unless you have some really compelling evidence otherwise, don’t expect to be treated charitably. If you came into my home and said what you have said here, no matter how civil, I don’t imagine I would be as generous as the bloggers here have been.

    You also claim misrepresentation. I would disagree. You haven’t even come close to convincing me that the judiciary acted inappropriately in the case. You even admit that were Prop 8 to come to a vote today, it would be unsuccessful. This complaint of judicial activism is the true smoke and mirrors here.

    I don’t agree with your conclusion of Perry but even if you were correct- most of this list constitutes some sort of actual harm and hence there are legitimate reasons for those activities to remain illegal. Besides, this has already been addressed, yet you repeatedly bring it up as if somehow repeating it will make it true. You have yet to say how SSM causes harm to the institution of marriage beyond using non-related activities.

    You said “Laws that do not reflect the people’s values are laws that are less likely to command the people’s respect.” In that I agree. Laws that deny rights based merely on what is considered “moral” should be relentlessly attacked if it results in unequal benefit for one group and not another, especially where there are citizens wishing to engage in this benefit. You seem to forget, the case was taken to court by citizens with support of both the Governor and the Attorney General (officials elected by the people) and the majority of the state now agrees.

  7. James Hanley says:

    Perry wasn’t about creating new government protections of rights such as bestiality; it was instead primarily a discovery that California was unequally denying an already protected right –

    Well said, Michael. Of course the normal response to that is “but gay marriage isn’t a right.” But that response begs the question. Whatever some may think marriage means socially, as a legal matter it is a governmentally recognized relationship with an attendant set of privileges and responsibilities. Private citizens are of course free to believe that a same-sex marriage is not a “real true” marriage, but government does not, by a strict reading of the 14th Amendment’s text* does not grant the government the power to enact mere social meanings into law.

    I think Mr. Kowal doesn’t always clearly recognize that when “we, the people,” are engaging in self-governance, “we, the people” are being government, and so are strictly limited by the Constitution. I’m not saying he doesn’t know that, but I think it gets sublimated in his analysis and consequently doesn’t influence it as it should.

    Jim 51–excellent points that I failed to cover. Indeed the judge did not say that private morality played no role at all, just that it was in itself insufficient justification. That’s why he placed so much evidence on the facts introduced into evidence–that was the evidence for the secular purpose. And while Mr. Kowal emphasizes his belief in the uncertain nature of the plaintiffs’ facts, he noticeably fails to mention the utter failure of the defense to introduce any persuasive facts at all. That failure is crucial because there is a point that so far I have–to my embarrassment–failed to emphasize. No matter how uncertain the plaintiff’s factual claims are, as a matter of law–this being a civil case–the standard they had to meet was merely the preponderance of the evidence (not, beyond a reasonable doubt, which is a criminal law standard). They did not have to present an iron-clad case, just a better case than the defense. And what kind of case did the defense present? Here’s the judge’s summary description, from pp.9-10 of his ruling.

    …proponents in their trial brief promised to “demonstrate that redefining marriage to encompass same-sex relationships” would effect some twenty-three specific harmful consequences. … At trial, however, proponents presented only one witness, David Blankenhorn, to address the government interest in marriage. Blankenhorn’s testimony is addressed at length hereafter; suffice it to say that he provided no credible evidence to support any of the claimed adverse effects proponents promised to demonstrate. During closing arguments, proponents again focused on the contention that “responsible procreation is really at the heart of society’s interest in regulating marriage.”… When asked to identify the evidence at trial that supported this contention, proponents’ counsel replied, “you don’t have to have evidence of this point.”

    You don’t have to have evidence? In a trial? Social science evidence, however imperfect, simply has to be given greater credence by the judge than no evidence.

    _________________________________
    *If the Supreme Court hears this case, Justice Scalia’s textualism may be at war with his originalism.

  8. James Hanley says:

    Mr. Kowal,

    1.
    The whole thrust of your argument was to find justification for allowing the majority to discriminate against the minority “unless that discrimination threatens the continuation of the republic.” If that’s not what you meant, then you need to expand and clarify your argument.

    Granted you did not specifically say that striking down same-sex marriage is “the” point at which self-governance is destroyed, but your passion on this issue is clearly stirred by that particular issue. You accused the judge of substituting private morality for constitutional interpretation (which only proved you had not actually read the opinion), have sharply critiqued the Iowa Supreme Court and the Supreme Court’s Romer decision, have justified bans on same-sex marriage by denying they are based on any animus toward homosexuals and so are just a normal exercise of self-governance, and in general have become worked up over the threat to self-governance in the context of this issue. It’s fair to assume that you think it is a crucial issue. If it is not, in itself, the crucial issue, then why are you not bringing up any examples other than courts supporting gay rights? Your actual actions undermine your denial.

    2.

    Judicial acts striking down laws that make racial classifications are at the zenith of justifiability:

    Which is it, Mr. Kowal? “Zenith of justifiability” or “quite possibly” justified? Both phrasings are yours.

    3.
    The primary difference between us is that you either treat self-governance with much greater reverence than do I. Self-governance is but a means to the end of liberty, and when it itself threatens liberty, it must be constrained.

    4.
    You have yet to make a persuasive argument for why we ought to allow ourselves–the people–the authority to restrict the minorities’ liberty and equality when that liberty and equality poses no harm to others. You want to restrict their liberty and equality solely on moral grounds–but why?

    5.
    When I said that you had not given much thought to the problem of mob-ocracy, I meant you had not given much thought to the possibility that you–you personally–might simply be acting as part of a mob, part of one of Madison’s factions “adversed to the rights of other citizens,” motivated by “temporal passions.” You still give no evidence that you have considered this possibility. How do you know that the real meaning and intent of “we, the people” expressed in the 14th Amendment is not the meaning and intent expressed by Michael Heath, Jim51, Anna, and myself–a less restricted and grander, more inclusive, vision of equality?

    I ask this because I sincerely think that you are simply part of a faction “adversed to the rights of others.” Clearly you are adversed to the rights of homosexuals, despite any evidence that protecting their rights will not harm you or anyone else. That sounds like Madisonian factional behavior to me.

    6.
    You obviously have not read Judge Walker’s decision. It’s available here. Read it, and we can discuss it’s legal soundness. But you do not represent yourself well when you criticize it without having read it. It’s like writing a book review without having read the book.

    7.
    Hard taskmaster? Thank you. I didn’t set a deadline on replying, though, and you didn’t have to reply on Monday. For my part, I wrote that in the middle of the night Sunday because I couldn’t get your disturbing political theory out of my head. I had to get up and write my response so I could stop thinking about it and get some sleep. I’m not looking for sympathy, but I’m not inclined to extend any, either. No one’s forcing you to engage in political debate.

  9. D.A. Ridgely says:

    How desirable ordered liberty is depends significantly on who is giving the orders.

    If only because they may have gotten lost in the weeds of the discussion, I’d like to reiterate two points made originally by others.

    First, can anyone seriously believe or contend that civil unions, as they currently exist and operate, are the legal equivalents of civil marriage? Given that they do not impart, e.g., social security survivor benefits or, as far as I can tell, any other federal benefits accruing to married couples, do not impart common law rights of inheritance, etc., it is hard for me to imagine anyone credulous enough to believe or arrogant enough to contend that the current status of civil unions even approaches legal equivalence to civil marriage.

    Second, the point was made that even if some harm to society were shown to accrue as a result of same sex marriage, many of us believe that would not suffice to make the case against them. Utilitarian purists are (appropriately) uncomfortable about the point, but deciding policy merely on the basis of its net overall benefit or harm will sooner or later end up running roughshod over some pretty deeply held moral intuitions about justice and duty. (Whether these intuitions can be explained by an evolutionary psychology account is largely irrelevant to either the fact that they exist or the argument that they should be heeded, but that’s for another discussion.) To be sure, at some point we will sacrifice the rights of the few for the benefit of the many, but (except insofar as it may be tautologically so by definition) doing so does not make it right.

  10. Michael Heath says:

    I previoulsly stated:

    Perry wasn’t about creating new government protections of rights such as bestiality; it was instead primarily a discovery that California was unequally denying an already protected right.

    James responded:

    Of course the normal response to that is “but gay marriage isn’t a right.”

    Besides the points James makes is another key point which was central to the findings of fact in Perry.

    If there are no explicit powers provided to government to restrict or prohibit a right, there then has to be a compelling interest for the government to deny the free exercise and/or protections of a right, such as the defense of the superior rights of others that compromises those seeking relief. The proponents of Prop. 8 had the opportunity to introduce evidence to the court that some groups superior rights were harmed by allowing gays their right to marry. The findings of fact in this case discovered that not only were there no superior rights to be defended by allowing gays the free exercise of marriage like heteros enjoy, there were no protected rights being violated by allowing gays the right to marry. Of course we are not surprised by this finding of fact given we’ve both watched Ed Brayton for years constantly seek out arguments by anti-gay activists who make this argument with zero facts supporting their talking points which can survive even the mildest scrutiny, i.e. they were all fatally flawed arguments, usually mis-framing their argument or making false assertions.

  11. Michael Heath says:

    D.A. Ridgely stated:

    How desirable ordered liberty is depends significantly on who is giving the orders.

    I hope you are proud of that; just beautiful.

  12. Scott Hanley says:

    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 deny liberty were right.” Rather, those who would deny liberty have always been recognized, ultimately, as being the mob.

    I especially appreciate this argument, grounded in historical experience as it is and not just in theory and imagination. We know when things get ugly and it usually comes in two varieties: the despotic autocrat, or the mob run amok. Of the two, the latter is often the worst: who, in 1994, would not have preferred living under Saddam Hussein than to be a Tutsi in Rwanda? And to portray a ruling that extends equal rights as “despotic” would be highly perverse.

  13. ppnl says:

    The thing that strikes me about both Dover and Perry is the incompetence of the losers. Well Dover was just about open and shut with a long judicial history on the subject. I think in Perry they could have made a stronger case that the states have a right to do this no matter how bad an idea it is. I think there is a really good chance that the supreme court will overturn it. This will really test them.

    The best thing of all is if California got off their ass and fixed their constitution. Another problem they should fix is how easy it is to change their constitution. If the constitution is as easy to change as a law then what is the point?

  14. Michael Enquist says:

    For anyone who can point me to the answer, I have this question:

    If I buy a car in Texas and drive it to Washington, I still own the car. If I buy a home in Florida and move to Idaho, I still own the home. If I adopt a child in New York and we move to Ohio, he’s still my child. If I marry a woman in Las Vegas, and we move to Utah, she’s still my wife. But if I marry a man in New Hampshire, well, we magically become unmarried if we move to Montana.

    Why does full faith and credit apply to all those other contracts, and not the last one?

  15. D.A. Ridgely says:

    Because, as I have labored to point out on our old blog, marriage is not so much a matter of contract as a matter of legal status. If you trace Anglo-American law from its feudal roots to today, what you find is a shift from rights and obligations being defined by one’s status (as a peasant, nobleman or whatever) to rights and obligations defined by contract. However, status remains legally significant in, e.g., citizenship and family relations. To speak of “the marriage contract” is thus misleading at least unless you note that the state is very much a party to that “contract” in a way it is not a party to most contracts.

    Mind you, I’m not arguing that this is how it should be. I would be perfectly happy to see civil marriage devolved entirely to a matter of contract in the ordinary sense. (Note that parenthood, on the other hand, is properly and should remain a matter of status.) I’m just providing a bit of context to explain how and why it is not and, for that matter, has never been a purely contractual matter.

  16. Michael Enquist says:

    Thanks for the clarification, D.A.

    My question then becomes: How is it that some States are required to honor heterosexual marriages from other States through the full faith and creidt clause, but get to avoid applying the same clause to homosexual marriages from other States?

  17. D.A. Ridgely says:

    Short answer is that there is a “public policy” exception which permits states to refuse to recognize the acts, laws, etc. of other states insofar as they deeply offend the state’s own prevailing law and public policy. This was, for example, the rationale for some states to refuse to recognize interracial marriages until the Supreme Court weighed in in Loving v. Virginia. Will the Court extend that reasoning to same sex marriages? Almost certainly eventually. How soon, on the other hand, is anybody’s guess.

  18. James Hanley says:

    Michael Enquist,

    To the best of my understanding, your question actually contains an inaccurate premise. States are not “required” to honor marriages from other states, full faith and credit clause notwithstanding, primarily for the reason DAR notes.

    But in most cases they apply the principle of comity–we’ll accept your if you’ll accept ours–because there’s no good reason not to. My wife and I, for example, are not even remotely related to each other (you’d have to go back well over 500 years before there’d be any possibility of a connection), were both in our twenties when we got married, and neither had any mental defects or communicable diseases. I.e., no state in the union would have had any reason to deny us a marriage license, and so none of the three states we’ve moved to since our marriage would have any reason to not recognize our marriage. It would actually be more problematic for them to not recognize it than to just accept it as valid. And as long as other states recognize their own marriage licenses, everyone’s happy.

    Las Vegas marriages tested this principle when they first became common, because many states require a waiting period. IIRC correctly, in California we had to have a marriage license granted no less than two weeks before we could get married. But I think states realized that worrying about Vegas weddings was more trouble than it was worth.

    But certain cases do cause states to say, “no, we won’t accept that one.” Marriages involving a partner who’s too young under their own laws (although I think they accept those once the person is of legal age in their state), and marriages that involve close kin (which some states allow and some don’t). Those run afoul of the “deeply offensive to public policy” principle, in a way that a boringly normal marriage like mine doesn’t. And so, unsurprisingly, does same-sex marriage.

  19. Jim51 says:

    Mr Hanley and Mr Ridgley,

    I don’t know of this “public policy” exception. I have been wondering when I might see a ‘Full Faith and Credit’ based challenge to the acts of some states to explicitly refuse to accept gay marriages through legislation. The Constitution seems rather clear on the matter and I see nothing in Article 4 that would be the basis for carving out an exception.
    Do either of you know of precedent cases that I might review?

    Jim51

  20. James Hanley says:

    Jim,

    There hasn’t been much. I think there was a case involving cousins, and maybe one pre-Loving concerning an inter-racial marriage. But I can’t find a reference right now (my usual source is Cornell’s Legal Information Institute website, but they don’t have either listed in their available historic decisions), my web searches are overwhelmed with returns on same-sex marriage, and I loaned out most of my casebooks to an adjunct teaching con law and never got them back. Maybe DAR will have more luck. But if I can find one of my casebook still around, I’ll see if it has the relevant information.

  21. D.A. Ridgely says:

    If you want a case on point, I’d have to say (1) I doubt there is one and (2) even if there were, I’m not going to conduct the legal research. A brief internet search for cases on the general doctrine of public policy exceptions to the FF&C Clause being deemed constitutional turns up, e.g., Pacific Employers Ins. Co. v. Industrial Accident Commission, 306 U.S. 493 (1939), where the Court generally held, “Full faith and credit does not here enable one state to legislate for the other or to project its laws across state [306 U.S. 493, 505] lines so as to preclude the other from prescribing for itself the legal consequences of acts within it. ”

    I’ll add that textualism is no more legitimate an interpretive tool for liberal applications of the Constitution than it is for conservative applications. The Constitution is never clear on any matter, especially including those matters about which it is entirely clear.

  22. Tim Kowal says:

    Prop 8 could not be more rationally related to California’s interest of recognizing marriage as “one man and one woman.” The issue in that regard was not the rational basis test; it was what constitutes a legitimate interest. Perry ruled that no moral belief could amount to a legitimate interest.

    “Moral disapproval alone,” you say? I don’t know that the word “alone” changes the meaning. Seems to me the court ruled that moral beliefs count for zero. They may even count for less than zero, if the court determines the moral belief amounts to animus. Do you take it to mean otherwise? Can morals count for more than zero in determining a legitimate state interest?

    Specifically, it said that “The state does not have an interest in enforcing private moral or religious beliefs without an accompanying secular purpose.” The meaning is the same: no matter how strong, how free of animus the moral belief, it cannot

  23. Tim Kowal says:

    All —

    My workweek has taken a turn for the busier. I hope to have some time to respond to some of the recent comments later this week. Thanks for the continuing discussion.

    Tim

  24. Jim51 says:

    “Prop 8 could not be more rationally related to California’s interest of recognizing marriage as “one man and one woman.”

    Sadly for you the case for the rational relationship to California’s interest was not made by the proponents. Their case was, in a word, pathetic. Now Mr. Hanley maintains that their case was so vacuous because there simply isn’t one to be made. I am beginning to suspect that he is correct. I, and I am sure others, would be happy to see you make that case, and back it up with evidence, but you haven’t seemed to want to go there.

    ““Moral disapproval alone,” you say? I don’t know that the word “alone” changes the meaning.”

    In that case you fail reading comprehension. The word ‘alone’ clearly has a meaning there. The court was well aware that moral views will enter many discussions, but if that’s all you’ve got then you don’t got enough.

    I am not sure what your last paragraph is attempting to get at since it seems truncated, but the accompanying secular purposes claimed by the proponents were not presented with credible, or in some cases, any evidence. It even went so far that on one point the proponents told the judge “you don’t have to have evidence for that.” I was stunned that anyone, much less a lawyer, would say such a thing to a judge in a federal courtroom.
    Again, I, and I am sure others, would be happy to see you make that case, and back it up with evidence, but you haven’t seemed to want to go there.
    Jim51

  25. Tim Kowal says:

    Anna,

    Thank you for your comments. Nonetheless, I persist in the belief that any argument that is important enough to be debated seriously is important enough to be debated respectfully and graciously. In the event a purportedly serious argument is made, yet ungraciously, I tend to the presumption the anomaly is in the ungraciousness, not the seriousness. Should I be convinced, however, that this presumption ought to be reversed in particular instances, I of course reserve the right to do so. In Mr. Hanley’s case, however, I persist in my original presumption.

  26. Tim Kowal says:

    In case I was not perfectly clear, I do indeed believe Mr. Hanley is quite serious in his arguments. And since I have by now poked back at him a bit myself, I am content to leave the issue alone.

  27. Tim Kowal says:

    1.
    The whole thrust of your argument was to find justification for allowing the majority to discriminate against the minority “unless that discrimination threatens the continuation of the republic.” If that’s not what you meant, then you need to expand and clarify your argument.

    First, I cannot locate the precise language you are attributing to me. Can you point me to it? Second, I think I mentioned that I intended my proposed interpretive theory to be an accompaniment to originalism. I also mentioned that my post was a crude first attempt to articulate the theory. So if that quote or something equivalent is properly attributable to me, I would clarify that the is not a necessary condition to summoning the counter-majoritarian power of the Court, but it may be a sufficient one in appropriate instances.

    Granted you did not specifically say that striking down same-sex marriage is “the” point at which self-governance is destroyed, but your passion on this issue is clearly stirred by that particular issue. You accused the judge of substituting private morality for constitutional interpretation (which only proved you had not actually read the opinion), have sharply critiqued the Iowa Supreme Court and the Supreme Court’s Romer decision, have justified bans on same-sex marriage by denying they are based on any animus toward homosexuals and so are just a normal exercise of self-governance, and in general have become worked up over the threat to self-governance in the context of this issue. It’s fair to assume that you think it is a crucial issue. If it is not, in itself, the crucial issue, then why are you not bringing up any examples other than courts supporting gay rights? Your actual actions undermine your denial.

    I am “worked up” over this issue because it is a cause célèbre, a present case or controversy. Shall we discuss the Commerce Clause and constitutional question over the individual mandate in PPACA? Or the DREAM Act and birthright citizenship? Or the delta smelt? These are intriguing issues I’d be willing to get up to speed on if you’d like to discuss them.

    2.
    Judicial acts striking down laws that make racial classifications are at the zenith of justifiability:
    Which is it, Mr. Kowal? “Zenith of justifiability” or “quite possibly” justified? Both phrasings are yours.

    These are not mutually exclusive. But in any event, let the latter take precedent over the former.

    3.
    The primary difference between us is that you either treat self-governance with much greater reverence than do I. Self-governance is but a means to the end of liberty, and when it itself threatens liberty, it must be constrained.

    I am not convinced that “self-governance is but a means to the end of liberty,” or perhaps we take “liberty” to have different meanings. I tend to believe self-governance is in part a means to engender the trust and respect of the people for its laws and government, and also in part a means to secure order in the civic and social institutions, and also in part a means of securing liberty. I also presently do not subscribe to the fiercely individualistic, libertarian view of liberty. (I say “presently” because I have bounced around on this question in the past.)

    4.
    You have yet to make a persuasive argument for why we ought to allow ourselves–the people–the authority to restrict the minorities’ liberty and equality when that liberty and equality poses no harm to others. You want to restrict their liberty and equality solely on moral grounds–but why?

    I might not be able to do anything about “persuasion,” but the basic argument is that all laws affect some liberty interest, and that laws based on the people’s moral values can be legitimate so long as they do not infringe upon fundamental liberties.

    5.
    When I said that you had not given much thought to the problem of mob-ocracy, I meant you had not given much thought to the possibility that you–you personally–might simply be acting as part of a mob, part of one of Madison’s factions “adversed to the rights of other citizens,” motivated by “temporal passions.” You still give no evidence that you have considered this possibility. How do you know that the real meaning and intent of “we, the people” expressed in the 14th Amendment is not the meaning and intent expressed by Michael Heath, Jim51, Anna, and myself–a less restricted and grander, more inclusive, vision of equality?
    I ask this because I sincerely think that you are simply part of a faction “adversed to the rights of others.” Clearly you are adversed to the rights of homosexuals, despite any evidence that protecting their rights will not harm you or anyone else. That sounds like Madisonian factional behavior to me.

    Obviously, I don’t think I am part of such a mob as you describe. But even if I were wrong, why should it matter in terms of political and constitutional theory? I touched on this question a while back in this post, where I said:

    But for the most part, to say that the Constitution would prevent lawmakers from doing something like making all marriage illegal, or some such silly thing, expands the document beyond its rightful scope. Our Constitution is a tool for reasonably like-minded people with a modicum of respect for traditions, personal virtue, and sensible laws. It is not an instrument to corral miscreants and fools under a banner of order they implicitly reject.

    As Scalia said in Padilla v. Kentucky, “The Constitution, however, is not an all-purpose tool for judicial construction of a perfect world; and when we ignore its text in order to make it that, we often find ourselves swinging a sledge where a tack hammer is needed.”

    6.
    You obviously have not read Judge Walker’s decision. It’s available here. Read it, and we can discuss it’s legal soundness. But you do not represent yourself well when you criticize it without having read it. It’s like writing a book review without having read the book.

    I read the ruling the day it was issued. I have an afternoon of lost billable hours to prove it.

    7.
    Hard taskmaster? Thank you. I didn’t set a deadline on replying, though, and you didn’t have to reply on Monday. For my part, I wrote that in the middle of the night Sunday because I couldn’t get your disturbing political theory out of my head. I had to get up and write my response so I could stop thinking about it and get some sleep. I’m not looking for sympathy, but I’m not inclined to extend any, either. No one’s forcing you to engage in political debate.

    Oh, I was just having a laugh. Don’t make me resort to using smileys.

  28. Tim Kowal says:

    When I say “let the latter take precedent,” I refer to the sequence in which I, not you, employed the phrases. In other words, I would say “zenith of justifiability.”

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