Structure, Rights, Gay Marriage, and the Future

The late Ronald Dworkin might have seen last week’s arguments as a repudiation of his life’s work. His project was all about law (very loosely speaking) as a high-toned principle, imported with Herculean effort into open-ended rights guarantees.  That pitch, hurled at the Court by the unlikely Olson-Boies team, ended up wide off the plate. Instead of grand rights claims, questions of constitutional structure took center stage: standing; federalism; justiciability.

That ought to be gratifying to those of us (including yours truly) who think that constitutional rights go with (rather than trump) the structure—no? Sort of. It’s certainly a relief that the demagogic “it’s just like interracial marriage” jazz fell flat. I wouldn’t hold my breath, though, for any serious judicial effort to understand, or even to begin to understand, “The Bill of Rights as a Constitution” (to borrow the title of Akhil Amar’s fine law review article). Rather, the structural considerations will be mobilized—and, so far as the litigants and amici are concerned, already have been mobilized—in the service of a vision that remains almost entirely rights-based.

I don’t mean to suggest that the standing and federalism questions are unserious or pretextual. For the most part, they are quite serious and on the merits quite difficult. I do suggest that virtually no one will believe that the arguments have any independent force, apart from their context and from the purposes for which they are being invoked or relied upon. The public won’t believe it, and the commentariat (and a large segment of the professoriat) has long gone legal-realist.

Everyone knows why the structure-and-jurisdiction stuff has come to dominate: it will help the Court—or at any rate some of its justices—to chart a path between Roe and Brown. On one hand, the justices don’t want to spark another round of culture warfare, akin to the result of Roe. On the other hand, they  want to be on the right side of history, a la Brown. Structure is the way to temporize on the rights trump: stop short of the full-blown right (for now), but don’t put anything serious in its way. While at it, make some encouraging, progressive-sounding noises about a rising tide of tolerance, the genius of democracy, split atoms of sovereignty, etc. The constitutional vision remains Dworkinian at heart.

Can one say anything intelligent about that m.o.?  Jack Balkin has called the right-side-of-history reasoning “Arguments from the Future” –a “new modality of constitutional argument,” he says. “Future” is certainly right, but everything else looks doubtful.

  • New? As Jack himself acknowledges, Alex Bickel tagged the argument from the future—“The Idea of Progress”—as the key to Brown and Roe. So the “modality” has a pedigree, and it has since been brought to bear on sex discrimination, global warming, etc.
  • Constitutional? As in, “It is emphatically the duty and the province of the Court to say which way the spirit is moving?” The only thing that’s constitutional about the idea-of-progress argument is that it has no constitutional reference point or limit, however attenuated.
  • Argument? A “wherever this is going let me be slightly ahead” mode of judicial reasoning may be a Posnerian calculus to maximize long-term reputational gains (which may be complicated by an exogenous event called “death”), or it may satisfy some psychological need. But why do those sorts of calculations count as arguments?

Speaking of the future and argument, though: one would feel better about the struggle for marriage equality and the Supreme Court’s soon-to-come judicious quasi-embrace if the limits were more apparent. “This is all about the label,” Chief Justice Roberts challenged Ted Olson, inasmuch as nobody is proposing to wipe out California’s marriage-equivalent civil unions. “The label is very important,” Mr. Olson replied—with understatement: it is in fact all that matters. This isn’t about equality in the tangible, live-and-let-live, let-me-earn-my-keep sense Americans associate with the term. To borrow Professor Hegel’s term, it’s a struggle for recognition: you will give me my dignity and call this marriage.

That sort of demand is hard to contain. We’re all agreed, it seems, that religious arguments against public recognition are off limits (and no other arguments appear to be left).  That being so, the demand to stamp out, de-legitimize, or ghetto-ize private disapproval can’t be far behind, and indeed it isn’t. (Ask the Boy Scouts.) Arresting that logic would require serious thought about the structure of a Constitution that befits a free society—and, along with thought, argument and (egad) conflict. We’re too busy and too nice for that. Most likely, we’ll work through future tensions with the only constitutional argument that seems to resonate: whatever.

Michael S. Greve is a professor at George Mason University School of Law. From 2000 to August, 2012, Professor Greve was the John G. Searle Scholar at the American Enterprise Institute, where he remains a visiting scholar. His most recent book isy The Upside-Down Constitution (Harvard University Press, 2012).

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Comments

  1. says

    The “arguments from the future” approach is ultimately just another form of the ad hominem fallacy. The structure is actually something like this: if you oppose (fill in the blank) rights, it is because you have a defective character. History, you see will expose your base character.

    Nested within this fallacy is another, like a set of measuring spoons. That fallacy is that some form of individual license, that societies have typically discouraged, acquires the characteristics of a right simply by being called such. There is no practical limit to such rights, or to the potential to disguise intrusions on the rights of others as “rights.” Just let your mind wander and see how easy it is: the right to suicide, the right to have sex with a child, the right to have strangers observe your personal religious customs, the right to take offense based solely on sensitivities known only to you, the right to have your own destructive habits recognized as a disability entitling you to state provided support, the right to never be grateful for things that are provided to you through the effort of others, the right to feel morally superior by demanding that others do more for fashionable victim groups, the right to have others compensate you for the natural consequences of your own excesses, etc.

    “Arguments from the future” assume that the future belongs to the whiny.

  2. David Flory says

    It would be possible to make a strong argument against “gay marriage” using Natural Law arguments. However such arguments would require assuming that there is such a thing as *human nature* with particular goods and ends. Without any consensus about the *telos* of human beings and society the interpretation of the Constitution will inevitably become arbitrary, political, and tyrannical.

  3. johnt says

    So after 4000 years homosexuals discover they need marriage to acheve societal validation. A little late in coming around. But the real question is, are there limits to the cranking out of laws that revolutionalize prior long standing customs and legalities for minorities. Make that minorities of minorities. By long standing, may we say three to four thousand years worth.
    To turn your back on the past the guides and tutors us is more than decadent, it’s the smell of a rotting body. Let us stand back and see what raises it’s head next.

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