The restrained vision of the federal judiciary that has dominated the jurisprudence of right-leaning American legal theorists and lawyers is under fire.
Many supporters of a policy of same-sex marriage, and even many supporters of a constitutional right to same-sex marriage—there is a difference—have felt compelled to disavow the shoddy analysis-cum-emotivism by which Justice Kennedy imposed that conclusion. What the euphoria over newly released Supreme Court decisions seems always to obscure is that the same method will be available to other jurists in other cases. Conclusions reached in future may not be so agreeable to those celebrating Obergefell v. Hodges today.
The method, distilled, is this: All reason resides in the present, all rights inhere in the individual. The nobility of tradition and politics are cast aside. In short, the method of Obergefell was the triumph of Thomas Paine over Edmund Burke. Yuval Levin has taught us that these two thinkers presaged modern conceptions of the political Right and Left. They appear, as well, to have given us dueling models of jurisprudence.
the science of jurisprudence . . . with all its defects, redundancies, and errors, is the collected reason of the ages, combining the principles of original justice with the infinite variety of human concerns.
It is one of the hoarier slanders of Burke—supporter of the American revolutionaries, liberator of the Irish Catholics, resistor of royal power—to call him a mere traditionalist opposed to all change or a simple historicist who deferred wholesale to the authority of the extant.
Instead, for him, jurisprudence’s difficulty, but also its authority, lay in the effort to combine “original justice” with circumstance. To place some authority in tradition was simply to recognize the limits of human reason. Even a Socrates who fully understands the principles of original justice—which Socrates in his wisdom did not claim—cannot comprehend the full ambit of circumstances to which they must be applied, in the same way that a scientist who understands all laws of physics still cannot predict every vicissitude of the weather because he or she cannot know the fullness of atmospheric events.
To accord history some authority is consequently the mark not merely of wisdom but of humility. It is a recognition that our reason is incapable of grasping all manifestations of all that matters.
Paine was not thus constrained. “Youth,” he wrote in Common Sense (1776), “is the seed time of good habits, as well in nations as in individuals.” In the pamphlet’s most famous passage, he cheerily rejected history:
We have it in our power to begin the world over again. A situation, similar to the present, hath not happened since the days of Noah until now. The birthday of a new world is at hand . . .
In The Rights of Man (1791), it was similarly a matter of celebration that republicanism “requires no belief from man beyond what his reason can give.” The “human faculties” must “act with boldness, and acquire, under this form of Government, a gigantic manliness.” Burke’s appeal to humility therefore collapsed at the altar of reason. Wrote Paine:
As to the prejudices which men have from education and habit, in favour of any particular form or system of government, those prejudices have yet to stand the test of reason and reflection. In fact, such prejudices are nothing.
This, of course, misconceives reason. It is an exercise of reason to accept reason’s limits; it is an act of unreason to assert its boundlessness. The authority of tradition is a form of reasoning in which reason is applied to circumstances over time. Paine’s method applies it instantaneously.
So does Kennedy’s. He claimed at oral argument to be thinking in terms of millennia of accumulated human history. Maybe so, but he now appears to have been licking his chops. In identifying four dimensions of marriage jurisprudence, and saying that an opposite-sex definition of the institution was not rationally related to them, he was essentially claiming not merely that he knew, but that he knew right now. His reason grasped the fullness of the issue, supposedly, and attempts on the respondent’s side to advert to wider future ramifications were for naught: The institution of marriage was to be dragged before the bar of Instantaneous Reason.
Note the temporal overtones in Kennedy’s explanation:
The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest. [Emphasis added]
Rejecting the precedent in Washington v. Glucksberg (1997) of “careful[ly] descri[bing]” new rights, Kennedy explained that “if rights were defined by those who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied.”
Yet this again assumes politics to be comprised of single moments of decision, taking place now and severed from yesterday. But our understanding of rights certainly can change over time, and has. Such changes are accommodated through the political process, often in a gradual way. What scandalizes Kennedy is that under the authority of history, rights might not be able to lurch forward at single, spectacular moments.
He similarly misconceived history, declaring that “rights come not from ancient sources alone. They rise, too, from a better understanding of how constitutional imperatives define a liberty that remains urgent in our own era.” The bipolarity is revealing: There’s the ancient, and there’s the contemporary; the judge chooses one or the other.
Might not there be something—tradition—unfolding between them?
This is the jurisprudence of Thomas Paine, and it is evident in another sense: the privatization of choice and the location of rights in the isolated individual. Thus Kennedy, with a note of condescension creeping in:
Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here. But when that sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied.
Note that moral beliefs are personal beliefs. Rights claims, similarly, are isolated: “The Nation’s courts are open to injured individuals who come to them to vindicate their own direct, personal stake in our basic charter.” This is unsurprising coming from he who said in Lawrence v. Texas (2003) that moral beliefs were irrational bases for laws. But Obergefell ups this already substantial ante, driving a wedge between the realm of the personal/moral and the apparently—what? immoral? amoral?—realm of the political.
This strands in no-man’s land anyone making a moral argument against same-sex marriage—but also anyone making a moral argument for it. Kennedy denies the nobility of politics as an activity. There is no space in his jurisprudence for communities to make moral decisions, including decisions that pertain to the boundaries of rights. This is not merely the jurisprudence of Paine. It is the warning of Tocqueville.
And of Roberts. For the Chief Justice was on to the arrogance of Kennedy’s rejection of history. His dissent quoted Moore v. East Cleveland (1977): “An approach grounded in history imposes limits on the judiciary that are more meaningful than any based on [an] abstract formula.” Roberts called, per Glucksberg, for caution in expanding rights: “Expanding a right suddenly and dramatically is likely to require tearing it up from its roots.”
The rejection of tradition, he warned, raises the question of what, beyond mere judicial will, replaces it:
The purpose of insisting that implied fundamental rights have roots in the history and tradition of our people is to ensure that when unelected judges strike down democratically enacted laws, they do so based on something more than their own beliefs. The Court today not only overlooks our country’s entire history and tradition but actively repudiates it, preferring to live only in the heady days of the here and now. I agree with the majority that the “nature of injustice is that we may not always see it in our own times.” Ante, at 11. As petitioners put it, “times can blind.” Tr. of Oral Arg. on Question 1, at 9, 10. But to blind yourself to history is both prideful and unwise.
It is all the more unwise because there was a route to Kennedy’s conclusion that did not run through Paine: the Equal Protection clause. It would still have been constitutionally problematic, but it would at least have had the virtue—one hospitable, incidentally, to Paine—of simplicity. But Kennedy, in a truly bizarre series of paragraphs, seemed to swerve around the Equal Protection route, instead musing on its potential fusion with the Due Process clause. The Equal Protection approach would not have entailed all that preening. Nor would it have left other judges in other circumstances free to mimic Kennedy’s anti-historical method.
This dragging of political decisions before the bar of Instantaneous Judicial Reason could get interesting. If it falls to judges and not to communities to define liberty, then how, for instance, does the legal Left respond to what legal libertarians already say: that the community must affirmatively justify to judges deprivations of liberty? When libertarians press this argument against deprivations of economic rather than social liberties—deprivations by which the Left sets great store—will liberals be able to argue that judges have acted illegitimately?
Communities, by contrast, make decisions differently from judges deciding discrete cases. Communities tend to reason over rather than in time, following the counsel of Burke: “We compensate, we reconcile, we balance.” This does not conduce to accountability before the bar of Instantaneous Reason. It does, though, capture a higher understanding, and a wiser humility: the “collected reason of ages.”