Burke, Paine, and Obergefell


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.

For Burke,

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.”

Reader Discussion

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on June 30, 2015 at 08:30:33 am

Excellent! Thank you.

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David Linton
on June 30, 2015 at 11:06:05 am

The penultimate paragraph raises the curtain on the drama of judicial determination of the Rules of Policy that shall be established to describe, define and delineate a *desired* social order and the relationships necessary to it.

This, drama will differ from the democratic process by which Rules of Policy have been the province of legislation, regulation and their interpretations. Under the democratic process, conflicts and disruptions, which may arise from such legislation, regulation and their applications, can be adjusted by amendments, rescissions, repeal and deprivations of authority.

In the case of judicial establishment or determinations of Rules of Policy, the reactions are likely to give rise to demand for the application of some form of democratic process to offset or prevent the vesting of Sovereignty (absolute authority) in the judiciary. However, such reliance upon a democratic process will not deter the continuing alteration of the judicial function from *evaluating* Rules of Policy to one of *establishing* them.

While there have been plausible arguments that legislative functions should be quasi judicial (Walter Lippmann, e.g.) weighing competing interests and objectives in terms of overall effects, there has not been plausible explanation for the judicial functions to become legislative; particularly in view of the lack of an adequate democratic process for constraints and corrections.

In the darker passages of the drama to come, the judiciary, like the legislature, may embark upon the establishment of obligations (of both constraint and action) to be imposed upon individual conduct, including the determination of the nature of relationships requisite to a *desired* (or more desirable) social order. The reasoning for those establishments of obligations will be to support (justify?) "Rights" that *ought* to exist as necessary for that desired social order and its qualities.

Some of the pending drama can be avoided by the various states withdrawing from the function of certifying marriages, which currently involve devolution of authorizations via religious ceremony. If the religious functions do not involve any devolution of state action or authority, judicial intervention will not be justified. That is not to say it will not be attempted. Jurisdictions may maintain registries of "unions," "partnerships," and other "civil" associations in which the participants*may* also register their religious bond. State laws may then provide that certain forms of registration (all of which would be individually voluntary) would be sufficient to establish certain and specific legal rights and remedies under the statutes and common-law.

Still the efforts will come to constrain individual conduct in the free exercise of discrimination and freedom of association (including freedom *not* to associate). Due to the extensive growth of licensure requirements for a multitude of activities, there will be a wide range of "opportunities" for those who would design a "more desirable" social order.

The orchestra is now entering the pit, the choristers are taking their places and the curtain will soon rise.

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R Richard Schweitzer
on June 30, 2015 at 12:07:03 pm

Yes, and "shame" on anyone who has the temerity to boo!, much less toss tomatoes!

Paragraph #5 - reads like a litany of Walter Croly's statement of objectives for the American government (re: New Social Order).

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Image of gabe
on July 01, 2015 at 08:23:06 am

And here is a take on the potential for additional Judicial MISCHIEF - kudos to Justice Kennedy:


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Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.