The Supreme Court as Sitting Constitutional Convention
Debating the proper role of the judiciary.
I was traveling most of yesterday, so missed Steven Taylor’s thoughtful post “On Constitutional Language,” which argues against my contention that the Supreme Court’s finding a right to same-sex marriage is judicial activism. As he notes in the post, it’s an issue we’ve debated in person as well as in the blogosphere numerous times over the past seventeen years.
We’re in agreement that democracy is aspirational and that our perception of even our most fundamental civil liberties has evolved substantially over the years, mostly in the direction of broader freedom for groups that were once marginalized. We also agree that, while it’s preferable for a variety of reasons for these changes to be enacted by the legislature, the judiciary has a role. The disagreement is simply over how these should be balanced.
My general sense is that the people have the right, through their representatives, to make public policy and that the Constitution serves merely to constrain the limits of public policy. First, because we’re a federal system, the Constitution guides which areas are under the purview of the central government, the governments of the several states, or prohibited to government altogether. Second, because of separation of powers, the Constitution guides how those policy areas under the purview of the central government are managed. Third, various provisions of the Constitution set forth parameters under which the central government and, in a handful of cases, the several states must operate. Because much of the language of the Constitution is subject to interpretation, the judicial branch serves, in the words of Chief Justice Roberts, as an umpire, issuing rulings when there are disputes over these areas.
While Steven and I are in agreement that the interpretation of the Constitution simply has to keep up with current conceptions of words, my preference is for the executive and legislative branches of the central government and the several states to take the lead on that front rather than the judiciary. So, for example, I note in my post that:
Congress was certainly permitted to create and fund an Air Force, despite the Constitution only mentioning an Army and a Navy and the airplane not having been invented in 1787.
Steven reasonably rejoins:
If we are going to say that the words should be bound to how the Framers themselves would have understood the terms, then I think that, in fact, we do need new language to allow for the Air Force (or, for that matter, for the owning of semi-automatic weapons). There is simply no way to assume that the Framers could have conceived of these things. Further, if we stick to the military for a moment, the only permanent arm of the military that the Framers envisioned was the Navy, given the need to protect trading lanes from pirates. Armies were raised for specific purposes and wars only fought when declared. The modern military bears no resemblance to what the Framers would have envisioned or understood (and while that is not an issue of democracy’s evolution, it is an example of how changing language influence what government does).
That’s all true. Still, I find it quite reasonable for the judiciary to interpret the Constitution’s language in this case broadly, not because I happen to be in support of fielding a modern military, but because it’s the express will of the people and there’s no Constitutional prohibition against it. The Framers clearly intended to give the Congress the power to legislate on matters related to the organizing and equipping of a military. Further, that power is constrained both by the fact that Congress is subject to election every two years and by the fact that any legislation needs the signature of the president, who stands for re-election every four years. There’s simply no reason the courts ought to get in the way.
Indeed, as a general principle, the judiciary ought to defer to the elected representatives of the people unless they’re taking action directly prohibited by the Constitution. But, of course, what precisely is prohibited by the Constitution is itself a debatable point. Steven observes,
I find the general notion that we have to get into the heads of men from the 18th and 19th centuries to interpret political questions of right in the 21st century to be unnecessarily constraining and problematic to the point that semantic arguments override the very concepts under discussion, especially when we are talking about abstract principles (e.g., freedom of speech, equal protection, due process, etc.). (Abstract in definition, but with obvious concrete applications).
But back to the main topic: did the authors of the 14th Amendment know what homosexuality was? Of course they did. Did they intend for the 14th Amendment to lead to same sex marriage? I can’t imagine it entered their minds one little bit. However, I don’t think that’s the appropriate test or issue here. The question is, did they lay down a basic principle with the following words?
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The notions of “equal protection of the laws,” for example, is a pretty clear principle that ultimately transcends the immediate thoughts in the mind of the person who penned them. Indeed, even if the person/persons who wrote the document did not envision the expansion of rights for Hispanics, women, homosexuals, or whomever else one might think of does not, in my opinion, obviate a deep principle that was laid down in constitutional law: that every citizens of the United States (every citizen) deserves to be treated by the law equally.
But, again, this is mostly solved by letting the people’s representatives update the principles. There’s simply no question that the 14th Amendment applies to Hispanics, women, and homosexuals. The question is what does “equal protection of the laws” mean with respect to those groups.
The question of women is an interesting one. Certainly, the people who wrote and ratified the 14th Amendment (in 1865 and 1868, respectively) were aware of the existence of woman. Most, presumably, were married to one and all of them had mothers. Yet, rather clearly, they did not intend to confer on women the right to vote. Doing so required the passage of the 19th Amendment in 1920. Was the 19th Amendment redundant?
As recently as 1972, Congress passed an Amendment to the effect that “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” It was ratified by 35 states, 5 of which later rescinded their ratification, failing to get the required 37 states by the 1979 and then 1982 deadlines.
While the above history makes is crystal clear that the 14th Amendment wasn’t intended to nor did it even in the near term grant full equality to women, there’s little doubt that the Supreme Court could have preempted all of this debate at any time if it wanted to. Doing so was unnecessary, in that Congress has essentially done it for us. Various legislation over the years has made illegal discrimination on account of sex in almost every aspect of public policy. The handful of exceptions are relatively minor and, as with the roles available to women in our armed forces, changing with time. Congress clearly has this power under Section 5 of the 14th Amendment.
Should the courts have sped the process up for us? I don’t think so. The Constitution manifestly didn’t require them to do so and it’s far preferable for fundamental social changes to happen organically, through the political process. It’s highly problematic that Anthony Kennedy—an unelected individual appointed to the bench as Ronald Reagan’s third choice for the job in 1986—can simply override the longstanding will of the people by claiming a Constitutional clause written 150-odd years ago supports his public policy preferences, notwithstanding that the people who wrote said clause meant no such thing.
The Framers set forth processes for amending the Constitution in Article V:
The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.
This is, by design, exceedingly difficult. The Constitution, written in 1787 and ratified in 1789, has only been amended in this fashion 27 times. Ten of those Amendments, the Bill of Rights, were almost immediate and essentially part of the original Constitution (the 27th, interestingly, was part of the same package but not ratified until 1992). Another three (13-15) were in response to the Civil War.
Yet, the Supreme Court, often on the strength of a single Justice’s deciding vote, effectively acts as a sitting Constitutional Convention. Simply be redefining “equal protection” to encompass same-sex marriage, last week’s ruling in Obergefell v. Hodges effectively passed an equivalent of the Equal Rights Amendment, notwithstanding vehement objections in a sufficient number of states to preclude amending the Constitution.
It’s worth noting, too, that this power works both ways. While the recent trend has been for the courts to use their power to expand the rights of the previously disenfranchised groups more rapidly than would happen through the political process, it has frequently worked the other way. Most notably, the Supreme Court of the post-Civil War era effectively ignored both the plain meaning and obvious intent of the 14th Amendment in striking down the Civil Rights Act of 1875 and in its ruling in Plessy vs. Ferguson.
As a practical matter, there’s no limit to the judicial power aside from their own prudence. When the Supreme Court says the Constitution says something it clearly does not say, that only remedies are amending the Constitution or a refusal by the other branches or lower courts to enforce the ruling. The former, as noted, is nearly impossible and has only happened in direct response to a Supreme Court ruling twice (the 11th and 16th Amendments). The latter is dangerous, indeed.