Thursday, July 9, 2015

The Supreme Court on Gay Marriage (Obergefell), and the Business of Constitutional Interpretation

I wanted to put down here a few thoughts on the Obergefell v Hodges decision.

Since the Court's decision, we have been met with repeated claims that the so-called “liberal” wing of the court abused and distorted the Constitution, engaged in “judicial activism” etc. If only, so the argument goes, we just stay faithful to the plain meaning of the words in the Constitution, we would apply it correctly.  We would stop all judicial activism. We would end the horror of unelected judges striking down democratically-enacted statutes.  And, moreover, only the right-wing of the Court adheres to this principle. The “liberal wing” (so-called) is forever reading into the Constitution. These were the predictable claims found in the dissent, and elsewhere

This is all patent nonsense, and needs to be put to rest.  

To begin with, it cannot be said with a straight face that the right wing of the Court renders some kind of purely objective, value-free reading of the Constitution (as if there could be such a thing, discussed below.)  They abandon their deep concern about overturning the will of the people as soon as they are certain that the Constitution requires it.  Hence, the decision in Citizens United, striking down portions of McCain-Feingold, Scalia and his ideological coterie (+1, i.e., Kennedy), were positive absolutely positive, that the First Amendment means that individuals have the right to spend unlimited amounts of money on political messages, with only the size of their bank account acting as a restriction.  And yet the First Amendment says nothing, nothing at all, about money.  And the historical context does not  point to such a conclusion either. (The Founding Fathers were clearly concerned with repression of political speech, but restrictions on spending money does not target the content of speech. In any event, could the Founding Fathers even envision 21 century politics? Would it be recognizable to them?) John Paul Stevens, in his dissent, made the persuasive case that McCain-Feingold was more akin to a "time, place and manner" restriction on political speech, which the Court has repeatedly permitted. (For example, the government may lawfully prohibit political protesters and picketers, etc. from demonstrating outside a certain prescribed area.   It is a commonplace for police to restrict demonstrators' ability to protest ,i.e., limit it to certain times and places.  And this is entirely Constitutional, so long as the government does not get into the business of restricting the content of speech). Therefore, to imagine that the Founding Fathers, if alive today, would look at something like McCain-Feingold and say “Well, that obviously violates the First Amendment” is pure pretense. The right wing of the Court did not merely “find” this in the Constitution, all their protestations otherwise.

But the point here is not merely to say something about the hypocrisy of the right-wing of the Court. (This has been commented on much elsewhere).  It is to make the larger point that the Constitution generally does not, particularly with respect to the passages and clauses that seem to command the most attention and spark the most debate, dictate its terms of interpretation and application. 

The Constitution does not contain a set of technical rules. It does not even consist of “defined terms” (as statutes generally do.) Rather, it announces a set of principles. These principles are, by nature, semantically open.  The business of interpretation is inevitable.  Hence, in precisely those portions of the Constitution where debates rage most fervently, decisions regarding their application in a particular set of circumstances is inevitably bound up with a set of beliefs and values about the proper functioning of the body politic.  Hence, when we confront the question of applying the text of the Constitution, we are necessarily left with open questions.  What is a “reasonable” search and seizure? How much process of law is “due” process? Which sort of "liberties" are protected by such due process? What laws “abridge” our “freedom of speech” or “impede” our exercise of religion? What constitutes “equal protection” of the laws, when the legal system itself is a system of classification, which, by its very nature, discriminates?

There are no answers in the Constitution to this question.  One can, of course, look to the historical circumstances surrounding its drafting. That kind of historical context is always salient.  Hence, 14 Amendment jurisprudence, for example, is particularly cognizant of racial discrimination, regarding race as a “suspect category” warranting “strict scrutiny” by the Court.  However, the Equal Protection Clause is not limited to questions of race.  It does not say “Congress and the states shall make no law discriminating on the basis of race.” That would limit its application to a certain set of facts. But the 14 Amendment is not drafted that way.  Instead of being limited to certain specified classifications, it announces a general principle – i.e., the general principle of equal protection of the laws. It therefore can be, and ought to be, applied to sets of facts other than those that specifically gave rise to its inclusion in the Constitution. To put the matter another way, to read the Equal Protection Clause as being exclusively about race would be to ignore its language, and hence to ignore that it is drafted so as to be malleable enough to apply to facts not considered at the time of its drafting.  This is not a flaw – it is a design feature

Put yet otherwise, faithfulness to the text of the Constitution (not just the 14 Amendment, but, again, those clauses as are drafted openly) requires a recognition that its text invites application to varied and differing cases. Indeed, the very strength of the Constitution generally lies precisely in its malleability.  Its semantic openness is precisely what allows it to endure.  The so-called “living Constitution” doctrine is not some artifact of a fanciful liberal imagination.  It is, rather, a way of saying (though, in my opinion, a poor way), that the Constitution is drafted so as to permit application to cases not foreseen nor foreseeable.  And if it was not so drafted, it would be of no use to us now.  

Hence there is nothing strained or forced in extending the Equal Protection Clause to prohibit discrimination against gays in about the claim that gays ought to enjoy the protection of the Equal Protection Clause in exercising the right to marry. Or similarly, that one of the fundamental “liberties” protected by the Due Process Clause includes the freedom to marry, and that the state therefore cannot  deny this liberty to same-sex couples.

(Note that I am not here engaging in a full analysis of, or even tracking the reasoning of, the opinion in Obergefell, much of which was based on arguing why the right to marry is “fundamental,” for purposes of Due Process jurisprudence.   The point, again, is the larger one, that the language of the Constitution cannot be said to compel an outcome in particular cases.  Put otherwise, if the Court goes ahead and applies a clause of the Constitution in ways not considered at the time of drafting, it is not acting at odds with the Constitution's purpose. It is, rather, entirely in accordance with its purpose

I am aware, of course, of the objection this sort of argument invites. Something along the lines of "what, don't you believe in the rule of law."?  What if this 'semantic openness' cannot be contained"? What stops judges from interpreting it however they like?" 

My answer to that question is, the requirement of making a legal argument places limits on how we interpret the Constitution.  Judges cannot simply make whatever decision they like. They must justify their decisions, using all the tools of legal reasoning and interpretation,  e.g.,. text, historical context, precedent, and attention to the facts (i.e., the present circumstances to which the Constitution must be applied.). The Court is therefore not just another political body. It is bound by the legal tradition (I might say "common law tradition") itself.  

Such an answer might seem insufficient. After the use of legal reasoning (as described above) isn't there still room for disagreement? Of course there is. Again, the Constitution is not drafted as a technical blueprint. Nor it is an exercise in formal logic, wherein conclusions must follow inexorably from assumptions and axioms. The business of interpretation is the business of disagreement.  

There is therefore, it seems to me (as alluded to above), no "value-free" Constitutional interpretation.  Therefore, the intellectual dishonesty of the right does not consist of their claim that they are merely reading the Constitution. It consists of the claim that there could be such a thing as "merely" reading something without bringing to it a set of values.  

To return to Citizen's United (as an example) -- my view is that it is simply impossible to render a decision in that case without having some view of the relation between money, speech,  and democracy.  While the dissent had the view that money corrupts democracy, the majority had the view that it facilitates democracy.  That is, they viewed any limitation on political spending as the very sort of suppression of speech that the founders were concerned would prevent the functioning of a vital democratic society. Since the text and the historical context  together, clearly did not "dictate" the result in the case (though the majority pretends it does), one must bring to bear one's views on the relationship between money, speech, and liberal democracy.  

More generally (and to repeat myself) it strikes me as straining all credulity to imagine that one could interpret a political document consisting of general principles (and not narrowly drafted technical rules) without at the same time having a set of values that one brings to bear on that interpretive process. This is not some kind of flaw of the interpretative process. It is at the heart of it. 

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