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Memo to Judge Posner: Tradition Proves A Lot
A couple weeks ago, the Seventh Circuit Court of Appeals struck down statutes in Indiana and Wisconsin that limited marriage to one man and one woman. It’s pretty much “same stuff, different day,” and I’m not much interested in substance of the decision. The way things are going, national same-sex marriage is all but inevitable, though it’s troubling that the issue should be resolved in federal court. As I read the Constitution, this is an archetypal issue for the states, but that’s probably a losing cause (at least in the short term) now that unelected judges with a clear agenda have asserted their powers as Philosopher Kings.
However, the Court did a great deal more than just overturn the collective wisdom of the electorate in Indiana and Wisconsin. The Court basically eliminated “tradition” as a restraint on power and, by extension, engaged in a preemptive strike against those who think the past is a road map to the present and the future. I’d go so far as to say that the Court has initiated a war against humanity.
Liberals, and some libertarians, are gaga over the rough treatment the court gave to the Assistant Attorney General who argued for the restriction. Columnist Steve Chapman laughed it up in a column at Reason, but this really isn’t a laughing matter.
You can listen to a number of clips of Judge Richard Posner speaking from the bench here, but the most important clip is the one below where the judge asks “Can tradition be a reason for anything?:
It appears Posner — oblivious to the fact that his job and his power are almost entirely grounded in tradition without which he would be impotent– suffers from a severe irony deficiency.
Tradition is not, as Posner implies, just a bunch of old stuff. Tradition is the foundation of rational conduct, and the means through which mankind passes on the social capital which has accumulated through the experience of thousands of generations that have already confronted the vicissitudes of life. As T. S. Eliot noted in the context of poetry: “he is not likely to know what is to be done unless he lives in what is not merely present, but the present moment of the past… not of what is dead, but what is already living.” (emphasis added).
But for a judge to say that tradition “proves nothing” is beyond irony, it is meshuga.
I can’t prove to Posner that addressing him as “Your honor” is scientifically valid, nor offer a study to show the benefits of judicial robes. But I have little doubt that justice would suffer should lawyers open with the phrase “Hey Dick, how’s tricks, how’s tricks?”. Or should judges shed their traditional black robes in favor of hot pants and rainbow tank tops?
There can be no doubt that the loss of essential legal traditions would destroy the courts. The doctrine of stare decisis, for example, requires courts to abide by prior decisions and the rulings of higher courts. The doctrine emerged from centuries of common law jurisprudence, a legal framework steeped in respect for tradition.
It’s nearly impossible to define tradition in rationalist language. Burke explained that traditions — though he used the word “prejudice” synonymously — are “cherished because they are prejudices and the longer they have lasted, and the more generally they prevail, the more we cherish them.”
Why? Because:
We are afraid to put men to live and trade each on his own private stock of reason: because we suspect that the stock in each man is small, and that individuals would do better to avail themselves of the general bank and capital of nations and of ages.
Critics of tradition insist, of course, that those who adhere to past wisdom are cranky old know-nothings. In a sense they’re right. A traditionalist will agree that he knows only a little: that is his greatest virtue. Traditionalists are pessimistic by nature, and cautious out of prudence. Adam Smith said “it is acquired wisdom and experience that teach incredulity, and they very seldom teach it enough.” For this reason, a traditionalist is humble because he knows that unrestrained novelty invites disaster.
None of which is to say that traditionalists are just sticks in the mud. Burke sided with the American colonies before the Revolution, and worked to bring peace between them, Parliament, and the Crown. But his position was firmly anchored in tradition. He defended the colonies because the colonists were Englishmen who were owed their traditional rights. As he put it, the colonists “are not only devoted to liberty, but to liberty according to English ideas and on English principles.” More simply, they insisted on English traditions.
In the face of the superstitions of the eager innovator, tradition should be seen for what it provides: knowledge. The world, and every nation that ever sat upon it, generates social capital, and tradition is the trustee’s tool through which he protects the corpus, and thereby insures the continuity which is indispensable to ordered living. In Jonah Goldberg’s phrasing “Social capital has a compound interest rate all its own.”
Goldberg also notes that “old things also attract barnacles, hard to remove and easy to confuse with the structure itself.” Those barnacles must be removed, and sometimes the hull will be damaged. But it’s best to understand the shape and substance of the ship before you light up a torch to remove those “useless” things.
Posner should think again.
Published in General
Once one abandons the notion that, from the perspective of the political community, the function of marriage is the procreation and rearing of the next generation of citizens, there is no reason why a man (or woman) should not marry a goat.
Thank you Senator Santorum.
Well, having your spouse eat all of your nice things might be a reason. Although being able to make and sell lots of artisinal cheese might balance that problem out. I’ll have to ponder this some more.
Burden shifting in discrimination is more complicated than that. In my view the courts have really screwed this up. First, under standard discrimination law the plaintiff bears the burden of proving discrimination first. The burden is low, but it exists nonetheless. After the burden is met the budren of proof shifts to the defendant who ust prove a legitimate nodiscriminatory reason. I haven’t checked recently, but under St. Mary’s Honor Society v. Hicks, the plriantiff must then show that, the dfendants evidence notwithstanding, the real motive was discrimination. With this framework the burden still largely with the plaintiff. That may have changed in subsequent litigation. I don’t much keep up on this anymore, but that was the way things were when I did discrimination law.
Under 14th Amendment jurisprudence the plaintiff still has the initial burden of proving that preent law violates equal protection as a first step. Only then does the defendant assume the burden of either establishing that there is no equal protection violation, or that there is a legitimate state interest in present law. This is a three tiered test (which Posner sneaks around improperly in my view) which imposes the burden on the defendant, but, in my understanding, nonetheless presumes, under SCOTUS precedent, the Constitutionality of present law.
The law may have evolved over the past 5 years, maybe James of England, or Sal, or Aaron, or another lawyer on Rico can clarify this.
You are mistakenly importing Civil Rights Act jurisprudence into equal protection jurisprudence. While I suppose it is theoretically true that an equal protection challenge could be dismissed if there was no disparity in treatment at all under the challenged statute, that wasn’t at issue here as it generally isn’t in equal protection cases. In Bogan all parties, correctly, acknowledged a disparity of treatment. In light of that, the somewhat bizarre burden shifting rules under the Civil Rights Act are inapplicable. Under equal protection jurisprudence, any disparity must be justified by the state.
As an aside, given the monopoly that is the state, this probably makes sense. An employer or landlord or whatever who is sued under the Civil Rights Act has no such monopoly of power over the plaintiff.
Thanks for clearing this up. As I said, it’s been a long while since I practiced and I’ve made a studied effort to avoid keeping up. I do recognize that in 14th Amendment cases facial discrimination is presumed invalid. I think the federal (and state) courts have often been to quick to conclude that allegedly facially discriminatory laws ARE disriminatory. SSM cases seem that way to me, but I’m trying to stay out of that argument on this post.
I do recognize that all parties acknowledge disparate impact in Bogan. I think the states were too quick to do that, but that’s just my opinion which, grounded as it is in somewhat explosive language, I will avoid explaining.(-:
I kind of thought you thought that, and I do understand the argument. I disagree with it. But I understand it and I understand how someone could make it with a straight face.
All this stuff about legitimate state interest is part of the bogus substantive equal protection and substantive due process theories. These approaches simply substitute the opinions of judges for those of legislatures. Obviously, the legislature thinks there’s a legitimate state interest for the laws it passes. Otherwise it wouldn’t pass them. so the only question is, why should one or five judges get to substitute their opinion about the answer to that question for those of dozens of legislators? This state of affairs is not a necessary consequence of an independent judiciary, but that’s where we are nevertheless.
Anti-Miscegenation laws redefined marriage in such a way to take marriage away from those who could previously do it. Anti-SSM laws simply keep the definition the same, and do not allow it to include relationships that it had never included in the first place (in all of human history). There is absolutely no honest way to compare the two.
I wasn’t necessarily defending it. Just describing it.
Yes, but Bogan and Loving both negate laws that prevent people who want to from marrying.
To be fair to American culture, Posner isn’t really part of it. He’s an eccentric libertarian academic who has no business whatsoever being on the bench. He’s often on our side on the political stuff, but he has no ability to behave like a judge rather than like a politician or an academic. Judges humbly follow precedent. Posner is frequently keener to legislate from his gut. I don’t think that we have a single judge on our side who casts so much shame on our claim to avoid activism.
Miranda cleared a guy from a rape conviction (charmingly, of a mentally handicapped woman) , but there’s no federal right to rape.
As I recall, you’re comfortable with other restrictions on marriage (number, age, consanguinity etc.) You can argue that SSM is one of the restrictions that should be struck down, but the general statement that the Constitution strikes down restrictions on marriage wouldn’t be enough, even if you were arguing for restrictions on marriage to be lifted, rather than arguing for marriage to be redefined.
In the common law system, precedent is almost everything, and tradition comes pretty close to being the same thing as precedent. For Posner, though, the Common Law is a concept that he defines idiosyncratically as an embodiment of various things he likes (not just economic efficiency). Having found what he likes, he elevates it to a fundamental principle, and then discards the parts he didn’t make up.
You’ll note that his recent decision to change his mind about Voter ID wasn’t based on precedent, either. Nor are his many academic discourses. Law and economics is perfectly legitimate for politicians to embrace, and there are circumstances where judges are forced into the sorts of consequentialist analysis that can render it helpful to judges. Going to it as one’s first resort, however, is an act of subversion beneath the dignity of a judge, less justifiable even than the living constitution jurisprudence it shares so much in common with.
James:
This is so true. I’ve read some of Posner’s books, and read many of his opinions, and I agree with your summation of his views and his, if I may say it gently, imprudence. He’s a bit like Obama. He thinks he’s the smartest gut in the room. I don’t see it myself, but who am I to judge? I’m not a U of C prof or a Federal Judge, so I just don’t have the brains to see Posner’s genius.
James, you weren’t following the context that lead to that post and missed its point — which was just that Loving and Bogan were similar in that each had the effect of allowing marriages which had previously been barred — nothing more.
Agreed. See my post number 20 on this thread. I have come away from my experiences with him with the sense that more even than judges whose politics I like much less, he is not (no longer?) suited for the bench. It’s not just his disdain for the legal process and its restrictions, which is common among judges, but his transparency about it, which kind of gives the game away.
Morning Cato Rand,
You and Mike and James of England are all more familiar with the law and the individuals, is there a way to resist the rulings, when a judge steps outside of his assigned role. I am guessing that censure, removal, and impeachment are so remote as to have no effect. Mike is suggesting that in our current environment, it is tradition which must defend its status, is there a way to make judges defend their rulings? Or perhaps could a law be drafted which gives those statutes, maybe specifically referendums, passed by the citizens of a state an elevated status limiting the ability of judges to strike them down? I think all of us would accept even laws we disagree with if they were voted on.
Two things:
1) The only ordinary remedy from a judge’s ruling is an appeal — in the case of Judge Posner that’s to the Supreme Court, and SCOTUS doesn’t take that many cases. Actually, slight caveat, there’s also a procedure called en banc review (by the entire Seventh Circuit as opposed to the three judge panels that normally decide cases). That’s not a ton more promising though, as en banc reviews are quite rare as well. (But note, the D.C. Circuit did just grant it in the ObamaCare tax subsidy case.)
2) The more “nuclear” option is some sort of jurisdiction stripping by Congress and would involve say, defining a class of cases what were outside the jurisdiction of the federal courts. This wouldn’t be directed at a particular judge, but at the entire federal judiciary. There’s arguably constitutional authority for this and I’m not current on the scholarly thinking on the subject (which is quite complicated), but I’m pretty sure that it’s still considered questionable whether such an act would be constitutionally appropriate. In addition, given that it involves Congress, it’s obviously politically problematic. Proposals do get kicked around from time to time but I alluded to the “nuclear” option (a filibuster analogy) for a reason — because my sense is that part of the reason nothing ever comes of it is that, like eliminating the filibuster, it opens a pandora’s box the consequences of which are hard to predict. An advocate of jurisdiction stripping today might wind up regretting it tomorrow.
Since we were both asked, I’d like to second Cato’s response in #49, and apologize for exaggerating our disagreement in #43.
Thanks Cato Rand and James of England,
I appreciate the clear way you have discribed the method of appeals, and the risky legislative approaches to restrain judicial ambitions. The answers are discouraging. If we use the abortion ruling and its results as an example, then we can see how a judicial choice which preempted the on-going debates in the state legislatures has prevented the public from getting past this issue. Instead of settling the issue the court ruling has caused it to fester, and prevented the public from closely looking at the difficult aspects of the topic.
It may be true that legislative options have risk, but aren’t the risks of judicial rule worse? I would rather the average Joes decide which traditions to change or drop than for the legal class to rule on what is proper. Might not folks increasingly view the courts as an amoral leagal monarchy, and begin to view judges in the same light as all other politicians.
Happily, Posner really is pretty close to being unique. If you believe this stuff, then do what you can to get Republican senators elected, support the nominee in 2016, and we’ll move closer to the America you want to live in. Just as Congress is becoming more partisan by party label (Republicans more conservative and Democrats more liberal), Republicans are getting better at judicial picks and each guy we appoint thus becomes another brick in the wall defending us against the threat you outline.
I pretty much concur, and if Dred Scott, Brown and Roe didn’t rein in the judiciary, I think it’s fair to say that mustering the political will to do so is pretty tough. I like Brown, and I’m a fan of the outcome of the SSM cases (if not the road used to reach the outcome), and of course I’m not a fan of either Dred Scott or Roe, but governing a country of 300,000,000 is a messy business, and we don’t always get what we want.