The Danger of Constitutionalizing Policy Disputes: A Response to David Upham

David Upham argues with characteristic lucidity that, based on the due-process rights of children, the Constitution might actually prohibit same-sex marriage.  The argument is innovative, but it ultimately demonstrates the danger of constitutionalizing policy disputes best left to prudential judgment.

Upham’s argument, if it can be summarized without doing it violence, makes four steps: (1) The Due Process clauses of the Fifth and Fourteenth amendments cover children’s liberty understood as locomotion. (2) Parents are the trustees of that liberty. (3) The traditional “usages and modes of proceeding” guaranteed as part of due process by Murray’s Lessee include—this is Upham’s innovation, and, on my reading, the decisive pivot in the argument—the custody of the biological mother and father, which (4) cannot be surrendered to a third party under conditions that do not conduce to the best interests of the child.

On the general principle that early apologies are sincerer apologies, I offer mine if I have misconstrued the argument.  Having so expressed myself, I hereby double down on interpretive license, because several more assumptions seem latent.

First, if I understand correctly, Upham has assumed, or will argue, that adoption proceedings constitute a deprivation of a child’s liberty that triggers the protection of the Due Process clauses of the Fifth and/or Fourteenth amendments.  Now, for the record, the idea of children having due-process rights anytime a public act deprives them of locomotion seems pregnant with litigious potential—at least it would be in my house, but that’s another story.  The crucial, and related, point—crucial because of the weight it bears in the analysis—is the relevance of Murray’s Lessee as a precedent.

Reading Murray’s Lessee the way Upham recently suggested the Constitution should be—that is, the way professors would want their own papers to be read—its applicability here seems a considerable leap.  In Murray’s Lessee, the Court permitted the Executive Branch, acting on a law of Congress, to seize funds from an embezzler without going through a judicial proceeding first.  In the course of asking what “process” was “due,” the Court inquired into traditional British “usages and modes of proceeding” that the American colonists had adopted.

Upham, if I correctly understand, would stretch this plainly procedural case—in which, it is important to note, the Court deferred to rather than overruled the political branches, and in which it asked whether the procedure in question conflicted with existing precedents rather than hunting for new ones—to cover a plainly new and, despite his criticism of substantive due process, suspiciously substantive right.  (In a thoughtful exchange with commenter Andrew Hyman on his original piece, Upham denies that this position constitutes substantive due process.)  Equally important, he would read the precedent in such a way as to freeze at one moment in time elected representatives’ ability to decide the terms of due process of, after all, law.  (Note here that the Court in Murray’s Lessee simply assumes it is up to the judiciary to resolve this question.)

Put otherwise, to sustain his analysis, Upham would need to demonstrate that the Court in Murray’s Lessee meant to freeze all “usages and modes of proceeding” in British and colonial law, including those pertaining to the family, forever preventing majorities from changing their minds on those topics—all this in a case pertaining to the recovery of embezzled funds (In his subsequent exchange with Hyman, Upham invokes the criminal procedure case of Hurtado v. California—but this, like Murray’s Lessee, is a case that plainly implicates the original intent of the Due Process clause and does not justify the key pivot of applying the “usages and modes” precedent to create what still seems to me to be a substantive right of children to the trusteeship of their natural parents, by which I suspect Upham ultimately means “opposite-sex parents.”)

Finally, Upham’s case rests on the tacit—but not too tacit—premise that children of same-sex couples fare poorly.  I infer this from Upham’s move from points (3) to (4) above.  That is, since all custody cases involve altering the custodial arrangements that arose from conception, the assumption must be that doing so does not conduce to the child’s welfare in this case.  (Incidentally, on this reasoning, is no-fault divorce, whose ill effects on children are certainly well documented, unconstitutional too?

I agree with Upham’s fundamental claim that the law should be concerned with the best interests of the child rather than the asserted rights of the parent. My concern here pertaining to the constitutional issues rather than the policy outcome, I would simply note the data asserted on the other side of the question, with which Upham would need to contend.

More important, so would judges.  And that raises what is, finally, the problem with the natural-law jurisprudence Upham thoughtfully defended in an earlier post.  It inevitably empowers judges with a wide berth of discretion they are neither professionally trained nor institutionally disposed to handle responsibly or efficaciously.  Among the general electorate, this escape to judges to resolve disputes neatly, cleanly, expeditiously and without public effort is ultimately a flight from political judgment, a seeking of protectors akin to—distantly, but still sharing political DNA with—the fetishization of the presidency in contemporary politics.

There has been, moreover, a suspicious tendency—there is no evidence, I would hastily add, with which to accuse Upham, nor do I—among advocates of natural-law jurisprudence for the conclusions they draw from it to align with conspicuous regularity with their policy proclivities.  Yet before being seduced by natural-law jurisprudence, conservatives should not presume it will lead to conclusions they would endorse.  (Equip a bevy of welfare-rights lawyers from the 1970s with a volume of Aquinas on natural law and charity and see what happens.)  Those who sharpen this sword ought not to be surprised when it turns on them.  If it is within the Supreme Court’s power to ban same-sex marriage, only the slenderest of reeds would support a complaint should judges require it instead.