For anyone who likes behind-the-scenes articles about the Supreme Court, here’s a piece about Justice Alito’s first months on the Court. Whatever your opinion of his judicial philosophy, it’s a very interesting article in which he’s rather open about what the experience has been like.
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The Presumption of Liberty
I recently finished reading a brilliant book that’s greatly affected my thinking about constitutional theory: Restoring the Lost Constitution: The Presumption of Liberty, by Randy Barnett. Here’s a summary of the book. Barnett, a law professor at Boston University, is a libertarian and a believer in an originalist interpretation of the Constitution. Because there is no true way for 100 percent of the population to consent to the Constitution, Barnett believes there should be a “presumption of liberty” – people have the right to be left alone unless it’s really necessary for them not to be. He states that the courts have wrongly eviscerated the Ninth Amendment – which protects unenumerated rights from the federal government – and the Privileges or Immunities clause of the Fourteenth Amendment – which he contends protects unenumerated rights from the state governments. These unenumerated rights are a subset of natural rights, which philosophers like John Locke said are the rights we hold merely because we are human beings, even before government comes into existence.
He disagrees with the Supreme Court’s creation of the doctrine of “fundamental rights,” or rights that deserve greater protection than others. Rights are rights, Barnett says, and there should be a presumption in favor of all of them. One thing I really like about this book is how Barnett criticizes many Supreme Court doctrines, such as the doctrine of fundamental rights and the doctrine of the various levels of scrutiny used in equal protection analysis. These doctrines are nowhere to be found in the constitution and don’t always make sense. (While I’m on this, I’d really like to find out more about the original meaning of the Fourteenth Amendment’s equal protection clause. Was it meant to apply exclusively to racial classifications? And does “equal protection of the laws” really mean what we say it means today?)
Barnett’s reason for being an originalist is very persuasive. Unlike many ideologues, such as Bork and Scalia, he’s not a results-oriented originalist. He believes in originalism because he believes in the importance of a written constitution. He says that if you believe in a “living constitution,” what you’re really saying is that you believe the constitution is flawed and needs to be changed. He finds nothing inherently wrong with this position, but he says that its proponents should acknowledge it so that there can be an honest debate. There is a valid way to change the constitution, of course: via the amendment process.
The only problem I have with this theory is that I’m not sure how much it protects equal rights for minorities. Barnett barely discusses equality in his book. Constitutional amendments require the support of supermajorities, and majorities are not usually concerned about granting equal rights to minorities. James Madison himself was concerned about oppression by a majority as well as by a minority.
Specifically, of course, I’m most interested in how Barnett’s theory applies to gay rights. Barnett supports the outcome of Lawrence v. Texas, stating that Justice Kennedy properly grounded his opinion in the right to liberty rather than the iffier right to privacy. (The article linked in the previous sentence is a great introduction to Barnett’s thought, actually.) But Barnett doesn’t discuss same-sex marriage in his book, and I can’t find anything online about whether he thinks same-sex marriage bans are constitutional.
Is marriage a natural right? A liberty? Technically it’s a government benefit. Libertarians probably believe there should be no marriage at all. I’m not a libertarian and I disagree. At any rate, you can argue that although the government is not required to allow marriage, because it does allow it, it should do so on an equal basis. But is that necessarily a justiciable court claim? Hard to say.
I would much prefer that same-sex marriage be permitted by legislatures instead of by courts. I think litigation is a last resort.
What do you do when something is right, but the legislature won’t allow it? That’s the question.
Stop Fighting?
Bryan of Faggoty-Ass Faggot writes that the gay-rights movement is focusing too much on gay marriage:
If you truly believe that we should just keep doing more of the same – harping on one issue, getting shot down by voter initiative after court decision, believing that some miracle will come along to bring us the all-encompassing victory without winning the incremental fights first, forgetting that only a small percentage of our community will actually benefit from same-sex marriage when all of the community would benefit from employment, housing, education and hate crime laws – then come stand in front of me, nose-to-nose, eye-to-eye, and tell me straight to my face.
There’s some merit in this view. Granted, he doesn’t say that we should stop fighting entirely. But he’s not the only one who’s discouraged by the recent losses. Some wonder if the fight has even hurt us.
However, I urge people to read this paper: The Backlash Thesis and Same-Sex Marriage: Learning from Brown v. Board of Education and its Aftermath, by Carlos Ball. (At the bottom of that page you can download the entire paper.) Particularly the final section beginning on page 33.
Ball argues that the gains from same-sex marriage litigation have outweighed the losses.
One, some gay couples in the U.S. are now married. That, in and of itself, is a gain. Furthermore, the example of Massachusetts will show people that society doesn’t fall apart when gay people are allowed to marry.
Two, look what the gay marriage fight has done: it’s made civil unions the moderate position. Even George Bush has said he supports civil unions! The struggle has opened people’s eyes to why gay couples need at least some sort of legal recognition.
Three, the gay marriage fight has led to progress on other gay rights issues by making some people more willing to support other forms of equality for gay people.
That said, however, at this point there do seem to be diminishing returns from the litigation strategy. We’ll see what the New Jersey Supreme Court decides, probably next month. After that, a strategy shift might be necessary.
One final thing, though. It seems that we’re damned if we do fight for gay marriage and we’re damned if we don’t. The thing is, though, any social movement is going to lead to social disruption. We can’t get anywhere if we don’t fight at all.