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Peter Robinson’s post yesterday cites Robert George’s passionate attack on claims for the constitutionality of gay marriage, wherein George argues that this weighty issue should be decided analytically at the wholesale level. He looks at what he, and many others, think to be bad decisions by an activist Supreme Court and urges that Republicans, both in and out of government, should treat the decision “as an anti-constitutional and illegitimate ruling in which the judiciary has attempted to usurp the authority of the people and their elected representatives.”
This is a very radical claim and the effort to upset the doctrine of judicial supremacy, far from being confined to this decision, could easily be extended to any other ruling that is subject to extensive political disputation. Professor George seeks to make this argument by analogizing the situation with gay marriage to earlier cases. Here’s the relevant section that Peter quoted:
Dred Scott v. Sandford was the infamous case in which the Supreme Court of the United States, usurping the constitutional authority of the people acting through their elected representatives in Congress, purported to deny the power of the United States to prohibit slavery in the federal territories. It is very much worth recalling that Dred Scott was not just a case about slavery. It was a case about the scope and limits of judicial power. It was a case in which judges, lacking any warrant in the text, structure, logic, or historical understanding of the Constitution, attempted to impose their own favored resolution of a morally charged debate about public policy on the entire nation.
The Supreme Court did it again in 1905 in the case of Lochner v. New York (invalidating a worker protection statute enacted by the state legislature), and then several more times in the Warren Court era, culminating in Roe v. Wade—the Dred Scott decision of our own time. Now we face the prospect of yet another Dred Scott-type decision—this time on the question of marriage. I say that, not because same-sex relationships are the moral equivalent of slavery—they are not—but because five justices seem to be signaling that they will once again legislate from the bench by imposing, without constitutional warrant, their own beliefs about the nature and proper definition of marriage on the entire country.
I think that argument misfires.
The lesson that we should take away from this discussion is that constitutionality has to be decided one case at a time. We do not have a pure popular democracy, for that would obviate the entire institution of judicial review. Yet, by the same token, we do not wish for courts to take over all the political decisions in the country. Deciding what belongs to the courts and what belongs to the legislature is like deciding what belongs to God and what belongs to Rome. There is a lot of play in the joints. So let’s go over the cases one at a time.
Dred Scott v. Sandford resolved two questions: the first was that it denied that Congress had the power to enact legislation on slavery that governed the territories, which clearly seems wrong given that the Constitution provides that “Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States;” That language surely seems large enough to cover this issue.
The other point was a technical one. The jurisdiction of federal courts extends to “diversity jurisdiction” (i.e., disputes between citizens of different states). Chief Justice Taney ruled that a former slave could not become a citizen, and thus could not sue in federal court. The outrage in response to this proposition was enormous, but the law of slavery was very complex (as well as very odious), and this issue was only resolved by the first clause of the Fourteenth Amendment, which said “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” No one wanted to wait for the Supreme Court to get back into the fray, and everyone agrees that the decision was, without question, the most disastrous issued by the Supreme Court.
It is not clear, however, that judicial deference to the legislature is the answer. What happens if the Congress, on the eve of Dred Scott, passes a statute declaring that no slave could ever become a citizen of the United States? The glory of democratic institutions is less apparent now. That was also the case with the notorious 1896 decision in Plessy v. Ferguson, in which judicial deference to state legislatures was used to support anti-miscegenation laws, forced segregation on common carriers, and segregated schools, thereby undoing the protections that the Fourteenth Amendment provided to the newly freed slaves.
But does the decision in Plessy foreshadow the 1905 decision in Lochner v New York? The tangled history of constitutional law makes this a hard call, but I have long been of the view that the Fourteenth Amendment did limit the power of states to impose maximum hours legislation in an effort to favor union workers over their non-union rivals. David Bernstein has written a powerful book, Rehabilitating Lochner, which shows the hidden strength of the Lochner decision, which can be justified on the simple grounds that no state legislature should be able to tell competent individuals of full age how to run their own affairs. The regulation was therefore not a bona fide provision to protect the health of workers who could protect themselves. The conflict between liberty and democracy is sharp enough. It is far from self-evident that Robert George’s blanket denunciation of the case is correct.
Roe v. Wade, in my view, is distinguishable from Lochner on the simple grounds that the police power of the government does deal with matters of health and safety, and that includes the protection of unborn life inside the womb. If this line of authority is correct, then lo and behold: Lochner is right and Roe is wrong. No general theory of judicial deference to the legislature can explain the difference.
So where does same-sex marriage come out? Historically, it was something that the legislature could regulate on the grounds that all questions of “morals” — marriage and sexuality foremost — were matters for state regulation. The argument here is historical and depends on an unbroken line of case authority that lasted until the 1960s, when Griswold v. Connecticut struck down a state law that banned the sale of contraceptives to married persons. After that point, it was off to the races, as sexual activity became a preferred freedom and a transcendent right.
At this point, the line between decriminalization (which was at stake in the 2003 case of Lawrence v. Texas) and the legitimation of same-sex marriages is not a huge leap. In my own view, Lawrence is wrong on historical grounds, in which case the argument for same-sex marriage on constitutional terms fails (even though that position attracts a lot of support from libertarians for the simple reason that they believe individuals should be able to choose their own sexual partners). Even the liberals on the Supreme Court don’t quite believe that, however, because I doubt that any of them would say that there is a constitutional right to polygamist marriages.
All this complexity throws a monkey wrench into George’s theory of full-time political supremacy. And with all the talk of the living constitution, I would not be surprised if the Supreme Court reversed course yet again and struck down the ban on same-sex marriage. But before they do so, they should read Jeffrey Sutton’s opinion in DeBour v. Snyder in the Sixth Circuit, which asks this question: why does the Equal Protection Clause strike down statutory prohibitions that were universally observed everywhere? I think that Sutton asked the right question. It is the disdain for tradition, rather than the appeal to political supremacy, that may afford the stronger grounds for decision.