More than one commentator has noted that the majority decision in Obergefell v. Hodges, requiring states to issue marriage licenses to same-sex couples, actually was decades in the making. No-fault divorce and our culture of sexual promiscuity, separating sex and even pregnancy from childbirth, inevitably dissolved the social consensus recognizing the natural family, including its children, as the fundamental basis of society. And this is true, as far as it goes. Indeed, one might wonder why same-sex couples would want to burden themselves with the legal complications of marriage given the very limited nature of its economic benefits and its waning social importance. The answer is simple, of course: our society abounds in demands from various groups for increasing affirmation and “recognition” from the state, and from all people as enforced by the state, for their various choices, as well as for a variety of socially constructed identities.
That said, Obergefell, along with the decisions regarding ObamaCare subsidies and housing discrimination lawsuits handed down the same day, is the flowering of a different (though culturally related) trend, this one among lawyers and legal academics in particular. And, where one can argue that Americans have brought the first, anti-marital trend upon themselves and have a duty to reverse it for themselves through evangelization and the hard work of loving persuasion, the other trend clearly tends and even intends to preclude any such recovery. Why? Because this other trend, which may be summed up as legal cynicism harnessed to ideology, has so undermined the rule of law in this country (and others) that it leaves discussion, people of faith, and the very institutions of civil society open to abuse at the hands of an unrestrained state possessed by a mob mentality.
What made Justice Kennedy’s decision in Obergefell so damaging was not its seemingly endless, vapid paeans to individual autonomy and other pseudo-intellectual claptrap. The inferior quality of Kennedy´s musings is beside the point. The problem is that his musings have no basis in our Constitution or in the moral and intellectual traditions that shaped it and our culture. Kennedy´s legal reasoning, such as it is, flagrantly violates the rule of law in order to impose the “correct” policy on the nation.
I am hardly the first to point out that Obergefell substitutes the will of judges for the rule of law. It demands of the people that they forego their obligation to follow and uphold the law of the land and instead bow to the will of the rulers. Such commands are inimical to any semblance of ordered liberty. Unfortunately, these commands, issuing ever-more frequently from the courts and the administrative state, have become deeply embedded in our legal culture and have rendered our legal nomenklatura immune to arguments rooted in reason and to principles of fair play and civil discourse. At the same time, the judiciary’s willful conduct has inured it, and us, to the tactics of ideological force.
The rise of what have been called “social justice warriors” is relevant here. These are people determined to use whatever means necessary, from law to executive order, campus regulations, and outright bullying through social media and “direct action” to change policies and get people fired for opposing policies in accord with their preferences. The policies may be summed up in the ironic term, “diversity.” That term means, of course, ideological conformity in support of a system of state-enforced privileging for some groups over others. The epitome of this attitude and its dangers to liberty may be found in a response to the dissenters in Obergefell. In a post at The Daily Beast, author and activist Jay Michaelson called the dissenting opinions of four Justices of the Supreme Court “A shocking display of treason.” His argument is simple: the decision in Obergefell is in and of itself the law of the land and justices have a duty to uphold that law, such that to question the legitimacy of the decision’s logic and reasoning is an attempt to undermine the political regime.
What makes this diatribe so frightening is its consistency with the line of thinking animating legal discourse for decades; it is a point of view with deepening roots and, as such, likely to triumph—at least over the short term and perhaps over the long term as well. According to the ruling orthodoxy among almost all legal academics, as well as a strong majority of judges and practicing lawyers, an attorney’s job is to change the law of the land by changing the minds of the justices; this having been accomplished, none may argue over the method used to achieve success. And where do we find the origins of this kind of reasoning among lawyers and legal academics? Sadly, in the forefront of many of the most important legal cases of the last century, many of them aimed at eliminating very real injustices, and all of them, however laudable their goals, successful at undermining the rule of law.
Segregation, voting rights, civil rights, marriage rights—in all these cases very real injustices were being perpetrated by governmental bodies. Change was needed and called for on both moral and political grounds. Unfortunately, that change was pursued, not so much through law as through activism and the perversion of law. Results may have come quicker (actually, even leftist theorists such as Gerald Rosenberg have argued that concentration on litigation actually slowed progress that should have been pursued in open political debate). But the point is that the pursuers used a cynical strategy that has undermined the legitimacy of law itself.
“Living Constitutionalism” as Will to Power
This cynical strategy often goes under the title “living constitutionalism.” It claims legitimacy by declaring that constitutions, and laws in general, must “change with the times” as measured by legal academics on the left and the judges who follow them. It sprung from a movement of so-called legal realism that denies the very coherence of law and law’s basis in anything other than the will of those who make it. The most extreme form of this legal ideology is the Critical Legal Studies movement, which paints law as nothing more than a form of power imposed by those with control over particular institutions and modes of discourse. Legal realism itself, however, can be traced back to the brute assertions of power set forth by the likes of Oliver Wendell Holmes, Jr., who infamously decreed that a rape victim be sterilized because she had a low IQ and “three generations of imbeciles are enough.”
Holmes saw law as a tool by which the government could pursue the good of the nation, perceived through a utilitarian lens and applied by using a calculus aimed at determining how best to increase material “progress.” Judges could decide cases only according to the “felt necessities” of the time and, while they should strive in some sense to be fair, inevitably they were led by the interests of their own class. The best that could be done, in Holmes´ view, was to keep in mind the limited utility of law, the goal of predicting when state coercion might be triggered by individual action, and the practical goal of answering contemporary problems with practical legal decisions. Eugenics, economic theories of liability ignoring issues of culpability, and deference to majorities in limiting economic liberty, though not free speech, were indicative “progressive” views Holmes championed. Later generations of lawyers and judges have left behind his particular, brutal views on social order. But they have kept his legal cynicism and used it to pursue what they deem humanitarian goals.
For Holmes, it could be said that the end of material progress justifies means others would find to violate constitutional or natural law. This tendency has become gospel truth for his followers. Ends are chosen beforehand in a kind of black box of second-hand moral philosophy and close reading of the New York Times then translated into legal arguments as necessary and convenient in the interests of legal victory. The key doctrine, here, is substantive due process. According to that doctrine, judges have a right and duty to determine what good things are necessary for a good, free life, then insert them into the Fourteenth Amendment’s guarantee against the people’s liberty being taken away without due process of law. The Fourteenth Amendment is then used as a trump, or club, to force states, branches of government, various organizations, and people to conduct themselves in the manner a majority of justices deem proper.
For “living constitutionalists,” some things are so necessary to our good that they must be protected on constitutional grounds, even if not mentioned in the Constitution, indeed, even if to uphold them means upending our entire constitutional system. Obviously, the list of “good things” is subject to change; liberty has given way to authenticity and self-expression, protection of one’s bodily integrity, freedom of movement, and property to emotion and public recognition in recent decades. No doubt further changes will ensue. It should not be surprising, in this light, that the Constitution, in practice, has become mere window-dressing. It is used to fancy up bids for power to look like legitimate calls to vindicate the “true” intentions of our long-dead Framers who were racist, sexist homophobes, but who would, if properly educated today, support the latest trend.
Judicial Illegitimacy Leads to Demands for Obedience
The fragility of such a system, in terms of its public legitimacy, is self-evident. Why follow one set of preferences rather than another, if none have a consistent, coherent basis in our traditions or in the “deal” forming the United States and setting its rules of action? This question is especially salient given that the “living constitution” model rests on the assertion that there is no permanent, coherent understanding possible regarding what is good and just. Why take the word of a Supreme Court justice, pretending to be a philosopher, about what our values, goods, and by extension even our laws ought to be? The threat of a breakdown in legitimacy under such a regime is very real for the simple reason that the judges’ actions themselves are not legitimate according to any coherent standard rooted in our constitutional system.
This is why our legal system has become increasingly dependent on assertions of power and demands for obedience. In shrinking back from a series of cases logically pointing toward the overturning of the infamous decision in Roe v. Wade striking down state laws limiting the practice of abortion, Justice Kennedy (again!) penned a decision, this time in the Planned Parenthood v. Casey case. There he asserted the need to protect the institutional capital of the Supreme Court, even if that meant upholding a decision a majority of the Court recognized lacked any basis in the Constitution. In the midst of much confused musing over prudential doctrines and (very high) standards for overturning previous cases, Kennedy makes the argument that sums up his, and most of his colleagues’ legal philosophy: “Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.”
The sheer arrogance of justices appointing themselves the national arbiters of public policy disputes should (but no longer does) take one’s breath away. With this decision Kennedy staked his claim to the power of deciding controversies of national importance for our people and our government by issuing orders “rooted” in the Constitution. Of course, the “rooting” may be tendentious and tentative at best. But we all must agree that the Court’s pseudo-philosophizing constitutes law, as we all must accept that the Court’s decisions do not merely settle the particular dispute in front of it, as between the parties in front of it. Rather, the Court now is to make broad pronouncements binding on the entire country—until such time as it changes its mind as to just what is demanded “for the people” by its own philosophizing and its own judgment regarding what the people “need” given changes in policies and institutions wrought by, you guessed it, previous Supreme Court decisions.
As for Mr. Michaelson, his defenders, if they bothered responding to criticism, no doubt would write off his comment as a bit of hyperbole, justified by the oppression he has suffered and the insensitivity of those who have opposed his crusade to fundamentally alter the nature of our society. Smearing, firing, fining, denying benefits to, and even jailing those whose faith in God and the law puts them on “the wrong side of history” from here on out will be justified in the name of fairness and payback, or excused as understandable excesses in response to historical injustice. And why not? If the Supreme Court can act according to its own will instead of the law to “settle” issues in the manner it deems best for the nation, why should not various activists achieve “justice” by using every means at their disposal, not just for its own sake, but as a means of showing the Supreme Court which way justice lies? All becomes politics, and, to borrow a phrase from Bertrand de Jouvenel, law becomes jungle.
Editor’s note: This essay first appeared September 27, 2015 in the University Bookman and is reprinted with permission.