Sunday, July 18, 2004
Steven Den Beste critiques Andrew Sullivan and Rich Lowry on the gay marriage flap.
The Fourteenth Amendment does not go as far as Den Beste thinks; it does not, as he says, forbid the result in Plessy v. Ferguson ("separate but equal"). What produced the result in Brown v. Board of Education of Topeka, Kansas -- if we ignore the Court's psychologizing, which is constitutionally irrelevant -- was more prudential than constitutional, along the lines of: "In all the litigation over this issue, we have never seen a 'separation' statute the point of which was anything other than inequality, so the States have confronted us with a clear choice between upholding Plessy v. Ferguson and upholding the Fourteenth Amendment itself, and we choose the Fourteenth Amendment." The Constitution does not require this result, but it does permit it. Fine so far, but the Court then proceeded to twist the Fourteenth Amendment into something those who enacted it would not have recognized, broadening this bit out of all proportion, ignoring that bit outright, and transforming the other bit over there into, as Monty Python would say, something completely different.
As to "broadened out of all proportion": The Fourteenth Amendment speaks of "privileges and immunities," of "due process," and of "equal protection of the law." It does not speak in terms of "no discrimination whatsoever." The line of thought that says it does is a comparatively recent creation of the various law reviews, as part of a "rewriting" binge launched by Brown, which rewrite has been partially, but not completely, endorsed by the Supreme Court. That the Fourteenth Amendment does not actually mean that, is easily demonstrated: If it did, then the Fifteenth, Nineteenth, and Twenty-Sixth Amendments were a waste of time, and the failed Equal Rights Amendment was already a done deal a century before it was proposed. And, as to the specific area of "gay rights," we also have it that the proponents of the Equal Rights Amendment (who, let us remember, thought they were proposing something new, and necessary) emphatically denied, in the face of their opponents' contrary claims, that it would produce any such result (in passing, it is amusing to note, the recent modification to the Massachusetts Constitution, as a result of which its Supreme Court foisted gay marriage upon us, is, in its terms, almost exactly the same as the failed ERA, which, we were assured ad nauseum, had no such consequence). The Fourteenth Amendment does not say what specific classifications it prohibits, though the Fifteenth at least gives us a clue ("race, color, or previous condition of servitude"); it is absurd, though, to claim that it prohibits all such classification.
As to "ignored completely": No matter how broadly we read the Fourteenth Amendment on the subject of discrimination, it acts only upon the States ("No State shall..."); it imposes no limitation whatsoever upon the Federal government. Yet the Supreme Court decided Bolling v. Sharpe (challenging "separate but equal" schools in the District of Columbia, a matter of Federal, not State, law) with nothing more than a wave of the hand in the general direction of Brown v. Board of Education, and not a word about how they accomplished that trick.
As to "something completely different": Again, no matter how broadly we read the prohibitions of the Fourteenth Amendment, it requires only that, whatever burdens or privileges the law provides, it must spread them equally. It does not specify what those burdens or privileges must be. But the Supreme Court has transformed "due process" (and, later, "equal protection") into specific guarantees of what both the State and Federal governments must do, and what they cannot do, whether the laws in question apply equally or not.
The controversy between "the letter of the law" and "the spirit of the law" is well known. What is not well known is, these two do not cover all the parts of the controversy any more. Now we have:
- The letter of the law: The law reaches only what it proclaims on its face. This is still the rule -- at least for the most part -- in the criminal law, and properly so: No prosecution can be brought, except upon the terms explicitly authorized by the legislature.
- The spirit of the law: The law also reaches similar circumstances, even though by its terms they are excluded, so long it might fairly be said, if the legislature had been confronted with this variant, it would have included it also within the law's terms. An example of this is, the extension of the Fourth Amendment to government interception of electronic communications: It is absurd to imagine that the Framers should have foreseen the possibility of such things, but eminently reasonable to suppose, if they had, they would have included them.
- The aspiration of the law: The law also reaches those circumstances the legislature ought to have included, even though by its terms they are excluded. An example of this is, the extension of the Sixth Amendment's right to employ counsel into a right to demand counsel regardless of ability to pay. By the bare terms of the text, there is little to distinguish, here, between the "spirit" and the "aspiration": the Sixth Amendment can be read either way. Unlike electronic communications, though, indigent defendants are not a modern phenomenon, and the uniform practice under the Sixth Amendment for the best part of two centuries bespeaks a right to employ counsel, not a right to demand, so Gideon v. Wainwright is an "aspiration," not a "spirit," decision. Another example is, the Supreme Court of Nevada using its own Constitution to strike down other provisions of that same Constitution, so as to redesign the funding of education according to its own preferences.
- The underlying principle of the law: The law also reaches all circumstances whatsoever which are contained within the underlying principle that justifies the law, even though by its terms they are excluded. An example of this is, the combination of speech, press, and religion under the First Amendment into a general underlying "freedom of expression," which then decides such matters as burning the flag.
- The justice of the law: The law reaches just results, whatever they are, without regard to its terms, whatever they are. There are very few clear examples of this, because the Supreme Court prefers to dress up its decisions, wherever possible, in some sort of justification under the Constitution or laws, rather than baldly proclaim, we decide this upon whatever grounds seem good to us, without regard to any provision of law (the law reviews, though, have no such compunction). There are overtones of this in Lawrence v. Texas, to the extent that the Supreme Court's wholly illegitimate invocation of foreign law contributed to the result. The distinction between this and the previous category is, here, neither the Constitution nor its Framing is a starting point; to the extent they make an appearance at all, they are a mere fig leaf for some wholly external ideology.
As one progresses down this list, one is further and further removed from legitimacy. Between "letter" and "spirit," there is still due deference to the power of the legislature to make what laws it pleases, upon such reasons as seem good to it, and that a court's refusal to comply must itself be founded upon the law; we have also, that whatever errors the courts make can be corrected by the legislature clarifying its meaning. Once we get to "aspiration," though, the legislature is no longer a power in its own right; no matter how clearly it drafts its laws, they are subject to equitable revision by the courts. Proceeding to "underlying principle," this illegitimate revisionary power is no longer confined only to the subjects of the laws actually passed: The dots can be connected to form whatever grand picture the courts wish to draw. When we arrive at "justice," the dots themselves are no longer a concern, and representative self-government is obliterated.
Andrew Sullivan's position, if truth were told, is founded upon "the justice of the law": He knows what he wants, and he doesn't care how he gets it. His dressing the matter up in general "anti-discrimination" terms (an "underlying principle" approach to the Fourteenth Amendment) is only a subterfuge, and a recent one at that: Right up until just before Lawrence v. Texas was handed down, he would regularly disclaim that same argument. His position at the time, many times stated, was, "Give us the right to sodomy, and we'll be satisfied; we promise that we won't immediately launch a new effort over gay marriage, which we couldn't justify under the law in any case." So far from being merely misguided upon this point, he is explicitly dishonest about it, and any argument with him about it is thus a waste of time.
UPDATE: Reading this through again later in the evening, I was reminded of one of the points I originally had in mind before I started writing it. In mitigation, let me say, this post was not composed with full attention over the course of a serenely peaceful afternoon; it was composed in whatever little bits and pieces of time I could snag whilst on continuous duty to break up all the fights between my three children in the pool. They're asleep, now, finally, so...
As I alluded above, discrimination on the basis of sex is controlled by the Nineteenth Amendment, not the Fourteenth. All that the Nineteenth Amendment says is, the suffrage cannot be conditioned upon sex. Voting aside, the legislatures are free to make distinction between the sexes for whatever purpose they wish; those who deplore this state of affairs took their best shot with the ERA, and failed. So even if we gather "discrimination against homosexuals" within "discrimination on the basis of sex," the only consequence is, the right to vote cannot be conditioned upon homosexuality.
For the more forensically inclined