China and its Discontents

Reposted from Facebook:

Here’s an idea: Paul Clement argued last week in Hollingsworth v Perry SCOTUS oral argument that the government’s rational interest in preserving hetero-only marriage is to further its fundamental procreative purpose. But in what alternate universe will gay marriage deter straight couples from making babies (“oh, I suddenly have the option to get gay-married! time to switch sides!”), or encourage LGBT folks to go straight and make more babies? Conversely, marriage equality (and this is a point that has been made before) only encourages more children to be raised in stable, loving family homes (surely a rational government interest if there ever was one). What happens to children after procreation is actually a greater government interest than the procreative act itself. The pro-marriage equality argument often focuses on defining marriage as primarily an expression of love and commitment, which is true and great; but how would this debate be different if we focused more on the ways in which marriage equality strengthens society, supports children, and is in the end a pretty conservative idea?

Note: I am not in favor of this case being decided under rational basis review.

On the eve of SCOTUS potentially overturning the individual mandate portion of the ACA, Ezra Klein reacts to the sadness and resignation at the political polarization of the court coming from liberal legal scholars by saying: “Of course the Supreme Court is political!” Last fall I wrote a paper on the various civil rights cases basically saying that this is not just a modern phenomenon, but one that’s been around as long as the court has existed (or perhaps shortly after McCulloch v. Maryland), and that shifting interpretations of the Constitution are perhaps not such a bad thing given the shifting moral ground of society (EDIT: I should note that I do NOT support the overturn of the individual mandate). At the time I was very nervous about ever writing or publishing something like this, but I guess it’s become a common-place sentiment now! Read on:

Justice cannot be blind to morality; ultimately all decisions made by courts amount to moral judgments. This seems to run contrary to the most conservative notion of the law: fixed and unbreakable, to be treated only as the words exactly prescribe and in the exact intention of those who wrote it. But this belies the fact that we have progressed morally. To say that we have progressed morally is, I think, clear. One hundred and fifty years ago, it was acceptable for Justice Taney to declare: “He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics…” (6) In Dred Scott, Justice Taney’s conclusion that blacks cannot become citizens is grounded on a purely moral basis. The appeals to tradition and precedent are beside the point. If Taney had disagreed with this evaluation of all blacks, then he would have reasoned that since blacks were human after all, they deserved the rights and protections of the Constitution. Taney contorts himself trying to explain the Declaration of Independence: “The general words above quoted would seem to embrace the whole human family…But it is too clear for dispute, that the enslaved African race were not intended to be included and formed no part of the people who framed and adopted this declaration; for if the language, as understood in that day, would embrace them, the conduct of the distinguished men who framed the Declaration of Independence would have been utterly and flagrantly inconsistent with the principles they asserted; and instead of the sympathy of mankind, to which they so confidently appealed, they would have deserved and received universal rebuke and reprobation.” (9) The founders would have been hypocritical if they simultaneously owned slaves and at the same time declared those slaves were free human beings? Why yes, they were hypocritical! There is no way Taney can come to this conclusion unless he makes a prior moral judgment that blacks are inferior. In this case, the language is unambiguous and clear, as Taney acknowledges in the first sentence.

The Court in the Civil Rights Cases and Plessy v. Ferguson did the exact same thing, but in reverse. The Court in these cases use the 13^th and 14^th amendments to institutionalize racism and discrimination in this country, contra to the obvious intentions of those who passed those amendments. When it passed those amendments, Congress specifically gave itself “power to enforce, by appropriate legislation, the provisions” of the two amendments. And it did enforce those provisions! It passed civil rights laws that guaranteed equality in the use of public accommodations; it directed the army to occupy the South, enforcing political and social equality and voting rights for blacks; it established the Freedmen’s Bureau to provide emergency assistance to former slaves, public schooling for black children, and found what we now refer to as historically black colleges and universities with the hope that the social inequality that former slaves and their descendants faced could be eradicated.

But the Court in the Civil Rights Cases and Plessy v. Ferguson made a predetermined moral judgment, and conformed their legal reasoning to fit that judgment. In the Civil Rights Cases, Justice Bradley seems to believe that “There were thousands of free colored people in this country before the abolition of slavery, enjoying all the essential rights of life, liberty and property the same as white citizens…” (45) How can Bradley believe this in 1883, when surely he has read Justice Taney’s Dred Scott decision, written only twenty-five years prior? It certainly is not any close reading of precedent when Bradley decides to use this “fact” to support his argument that private discrimination should remain untouched by federal legislation.

Bradley later asks: “If it is supposable that the States may deprive persons of life, liberty, and property without due process of law…why should not Congress proceed at once to prescribe due process of law for the protection of every one of these fundamental rights…?” (36) And yet this alternative is exactly what happened when, in a series of decisions, the Court incorporated the Bill of Rights and applied it to the States! The Court in later decades simply made a different moral determination than Bradley did and used the Constitution to support that determination.

And the same thing happened when the Court ruled in direct opposition to the Civil Rights Cases in Jones v. Alfred H. Mayer Co. without explicitly overturning the earlier precedent. There is little difference in the facts of the two cases, and no difference in the legal issues presented! In the Civil Rights Cases, the Court denied that private discrimination constituted a badge of slavery per the 13^th amendment. In Jones v. Alfred Mayer, the Court did. The Court in every one of these cases interpreted the Constitution according to their individual ethical codes and contemporary public morality. How else can you explain the radical swings in Constitutional law, from Reconstruction, Segregation, and Civil Rights eras? Morality dictates law.

Nothing could illustrate this case further than the Court’s opinion in Plessy. I need only reference one overriding, and controlling fact to make my point. In the Civil Rights Cases, Bradley specifically stated that the 14^th amendment, “nullifies and makes void all State legislation, and State action of every kind, which impairs the privileges and immunities of citizens of the United States, or which injures them in life, liberty or property without due process of law, or which denies to any of them the equal protection of the laws.” (33) And yet Justice Brown in Plessy directly violates this ruling. Bradley meant that the 14^th amendment made unconstitutional exactly the same State-authorized Jim Crow segregation laws that Brown accepts as constitutional.

Any claim that the Court has always, and should always, retain a strict constructionist interpretation of the Constitution is a farce. We have progressed morally. Our interpretation of the Constitution has evolved dramatically over time. We haven’t maintained an Originalist interpretation according to the “Founders intent” (whatever that is), and we shouldn’t.

In Dred Scott, Taney derides: “No one, we presume, supposes that any change in public opinion or feeling, in relation to this unfortunate race, in the civilized nations of Europe or in this country, should induce the court to give to the words of the Constitutions a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted.” (24) But practically speaking, this is exactly what we have done. As we as a people have interacted with one another and discovered that we are human beings and citizens deserving of equal rights, we have changed our interpretation of the Constitution to fit the times. This is appropriate. Law is a codification of common morality. Any interpretation that insists we adhere to a puritanical eighteenth-century version of morality is wrong.

GEORGE WILL’s Sunday column calls the Supreme Court health-reform case (three days of oral arguments begin Monday) “the last exit ramp on the road to unlimited government”: “[T]he Institute for Justice, a libertarian public interest law firm, [argues that the] individual mandate is incompatible with centuries of contract law … because a compulsory contract is an oxymoron. … Under Obamacare, Congress asserted the improper power to compel commercial contracts.”

Libertarians may believe a compulsory contract is an oxymoron, but everyone is entered into all sorts of “compulsory contracts” by the virtue of being a citizen! Just by being born in the U.S., we are all compelled to pay taxes, abide by the criminal and civil legal codes, and sign ourselves up for Selective Service and possibly be drafted (if we are male), among other requirements that I am most certainly forgetting. Many political philosophers would also consider voting to be each citizen’s duty, and many countries make voting legally obligatory. Of course we wouldn’t even be having this argument if either single-payer insurance had been enacted or hospitals themselves had been socialized, making the individual mandate unnecessary. Those alternatives definitely would not have invited any legal challenges. At least, I don’t think so…

Via Friday’s Playbook

I liked the title so much that I completely ripped it off of Steve Clemon’s post on the same video, but I had seen this several days before he posted it.

I celebrate with gay marriage proponents everywhere in hearing that District Court Judge Vaughn Walker has overturned Prop 8. But this isn’t the end of the journey along the court system. The decision is going to be appealed, where it will land in the 9th Circuit Court of Appeals, and eventually the Supreme Court. Anthony Kennedy currently holds the distinction as the the swing vote in a polarized Supreme Court that regularly votes 5-4 on highly-partisan cases (the fact that it does so often makes these cases highly-partisan itself). So the pertinent question (one that pundits will be asking for months until the Supreme Court releases its decision) is whether Anthony Kennedy will sustain the District Court ruling, overturn Prop 8, and bring gay couples into full equality in the institution of marriage.

I believe that Kennedy will unquestionably vote to sustain Walker’s ruling. All one has to do to come to this conclusion is to read Justice Kennedy’s opinion in Lawrence v. Texas. Justice Kennedy strongly believes in the rights of everyone to enter into relationships that do not harm others or interests the state protects. In fact, he justifies this belief in the same ways other justices have historically reasoned on the right of privacy: that the right to have sex, to love, to date, and to marry, is per the 14th amendment ‘implicit in the concept of ordered liberty’. It is the basis by which society and all other rights are built. What follows is a short paper I wrote on the subject of Kennedy’s opinion in Lawrence. If after reading this and his opinion you are still skeptical Kennedy will side on the favor of gay marriage, email me.

In Lawrence v. Texas, Justice Kennedy made the right argument in favor of overturning Texas’ ban on homosexual sodomy. The strongest argument in favor of overturning this ban is the first argument that Justice Kennedy makes – that this ban violates fundamental human liberties of the most private human conduct, in violation of the Due Process Clause in the 14^th Amendment. The dissenting opinion in this case, written by Justices Scalia, Rehnquist, and Thomas, tries to argue that ‘homosexual sodomy’ is not a fundamental right under the Due Process Clause. This is a mockery of Kennedy’s argument, and is not the fundamental right that he argues for.

The freedom to conduct in private consensual sex, ‘absent injury to a person or abuse of an institution the law protects’, is but one small part of the liberty Kennedy argues for. The freedom to have sex, and more broadly the freedom to enter into the relationships that accompany it, are fundamental to the functioning of the entire human species. If we are not secure in our ability to enter into a romantic relationship absent the government stepping in to play matchmaker, then we cannot be secure in any freedom. Even when the most primal right of freedom to procreate is not at stake (given that this concerns homosexual sodomy), the ability to freely enter into these relationships cannot be abrogated. The right question is not: do we have a right to enter into consensual, loving relationships without government interference? The right question is: how can the government have a right to infringe upon our personal relationships?

I do not believe that Justice Kennedy’s later arguments invalidating the precedent or tradition against homosexual sodomy are as strong as the previous argument. Kennedy argued that laws banning this conduct were relatively new, and that similar laws are not endemic to Western Civilization or Judeo-Christian moral standards. If you take the first argument as a given, then Justice Kennedy should not need to invalidate precedent or tradition. If sexual self-determination is a fundamental liberty, then modern laws or tradition are simply wrong.

The dissent’s strongest arguments lie in blurring the difference between homosexual sodomy and other widely-punished offenses such as bigamy, adult incest, prostitution, and same-sex marriage (which at the time of writing had not yet been legal in any state). They argue that if laws banning homosexual sodomy are overturned, then no laws banning moral offenses can stand. This is a false dichotomy, because there is a distinct difference between homosexual sodomy and gay marriage on one hand and polygamy and incest on the other. Justice Kennedy provided the standard in his brief – keeping such laws if they dealt with practices that caused injury to a person or abuse of a legally protected institution. Incest and polygamy are argued to cause psychological harm – the first to children and the second to the multiple wives. Gay sodomy and marriage is consensual and causes no harm.

I personally come out in favor of the Majority in Lawrence. In the course of restating one of Justice Kennedy’s arguments, I stated my own opinion: if we are not secure in our ability to choose sexual partners or engage in serious relationships, then we cannot be secure in any right. If homosexuals are not free to engage in sexual practices, then neither are heterosexuals.