Four HPR writers explore the legal and political ramifications of the Supreme Court's recent same-sex marriage decisions. From Justice Kennedy's judicial activism and Justice Scalia's originalism to the LGBT equality movement and party politics, these writers explore some of the most pressing questions the justices left us with on June 26. (Update: Humza Bokhari looks back at the various paths leading the first thirteen states to marriage equality.)


HPRgument Posts | July 5, 2013 at 7:44 pm

Answering Justice Scalia: On Governing Ourselves


scaliaEleven years after brave patriots declared their independence from an oppressive empire, the architects of our republic instituted a Grand Charter the primary purpose of which was to establish a system of self-government. Even before the Framers had penned the magnificent words of the Bill of Rights, they had already drafted the provisions of what, rightly, was the primary objective of the new constitution: a political system in which the people could effectively govern themselves.

But the original document, stripped of the Bill of Rights, was unpalatable to many. Like the sickening aftereffect that comes from eating too much candy, the initial charter contained too much of a good thing: democracy.  Concerned with the expansive powers vested in the new federal government, a group of anti-federalists successfully pushed to secure certain fundamental freedoms against transient passions. The Bill of Rights gave rise to a great shinning shield that placed key liberties beyond the reach of majorities, and established them as principles to be applied by the Courts.

The effect of this compromise was the birth of two great realms: the realm of democracy and the realm of personal liberty. The former contains the set of issues properly belonging to the democratic arena, while the later contains those issues properly belonging to the judicial sphere. For the entire length of American history, the border that divides these two realms has proven a seismic fault line. There has been great turbulence whenever there is talk of shifting the line, whether in the direction of greater liberty or of more democracy.

The Constitution itself lays out a formal amendment process whereby the polity can shift this dividing line whenever it deems necessary, but the task has always proven tumultuous and bloody.

The greatest expanse in the realm of personal liberty came with the Civil War Amendments. The price of that victory was a hefty one: a million dead and wounded Americans. The passage of the 19th Amendment, granting women the right to vote, similarly expanded the realm of personal liberty, placing the issue of women’s suffrage – previously left to the democratic process – behind the shield of judicial protection. That amendment only came at the end of the Great War, and only after countless suffragists had been beaten and killed.

In more recent history, the expansion of the realm of personal liberty has occurred through less formal means. Faced with the increasing disintegration and political infeasibility of formal amendment, the Supreme Court has taken a more active role in preserving the founding promise of a dynamic constitution fit for the times. The practical fulfillment of the Civil War Amendments, as well as the extension of equal protection and due process to women as a class, has all occurred through judicial constitutional re-interpretation.

The judiciary has played a similar role in extending constitutional protections to gay people. Most notably, the recent Windsor ruling held that denying same-sex couples federal marriage benefits violated their 5th Amendment rights to due process and equal protection of law.

In a powerful dissenting opinion in Windsor, however, Justice Scalia chided the Court for what he called its “hunger” to constitutionalize the issue of same-sex marriage and place it outside the reach of democratic processes. “Few public controversies will ever demonstrate so vividly,” he said,  “the beauty of what the Framers gave us, a gift the Court pawns today to buy its stolen moment in the spotlight: a system of government that permits us to rule ourselves.”

The charge here is clear: the Court’s ruling in Windsor is an egregious display of judicial activism in which five justices tyrannically substituted their will for that of We the People

This accusation is false. Upon closer examination, it soon becomes clear that Scalia’s own judicial philosophy, and his dissenting opinion, constitute the greatest betrayal of We the People and of democracy.

To understand why, it is important to zero in on what Justice Scalia means by “the People.” I zero in on this term because it is one that Justice Scalia indiscriminately uses in two senses. To distinguish between these two senses, I am going to make a distinction between “the People (1)” and “the People (2).”

I will define “the People (1)” as the generation of Americans that existed at the time a given constitutional provision was adopted.

I will define “the People (2)” as the current living generation of Americans.

The layperson who reads Scalia’s dissent is perhaps initially moved by its poetic statements in favor of a Constitution that belongs to “We the People” and not to activist judges. This appeal, however, stems from a false assumption that Scalia believes the Constitution belongs to “the People (2),” when, in fact, what he really means is that it belongs to “the People (1).”

As a constitutional originalist, Justice Scalia is committed to the view that constitutional meaning corresponds to the beliefs of the ratifying generation. There are many faults, I believe, with this interpretivist approach. I would like to focus on one here: it’s incompatibility with the democratic ideal.

For a man who sings such sweet hymns to the virtues of democracy, it is puzzling that Justice Scalia would have the destinies of 300 million living Americans governed by the will of a small group of people who are now long dead and gone. What is democratic about that?

A democratic constitution must be one that belongs to “the people (2).” Given the infeasibility of formal amendment, that promise can only be fulfilled if the Supreme Court takes it upon itself to reinterpret the Constitution’s vague pronouncements in light of changing social mores. A court that does that is not activist; quite the opposite, it is the only kind of court that is properly governed by We the People.

When Justice Scalia suggests that the majority opinion in Windsor marked the beginning of a new informal constitutional amendment, he is sorely mistaken. What happened yesterday was not the beginning, but the end of an extremely arduous and democratic process years in the making. Whatever new content our Constitution now has, it did not flow from the hand of Anthony Kennedy; rather, is was forged by an LGBT movement that began at Stonewall and drew strength from proud Americans who opted to lead lives of openness and honesty.

Because of this movement, a majority of Americans today support same-sex marriage, and an overwhelming majority of young Americans do so as well. Wednesday’s marriage rulings did not usurp the will of the people; it merely ratified it. The majority opinion in Windsor was not a show of judicial supremacy, it was a low and solemn bow to the will of “We the People” in our present and future incarnations.

In response to Justice Scalia: We are already governing ourselves – what we refuse to do is be governed by the past.

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