Have I been making wrong and futile arguments on the Proposition 8 issue?

Kevin V. writes:

I have reviewed the comments to date on the Proposition 8 debate and have found generally that the commentators are speaking of two very different things. The first issue is the minoritarianism of the U.S. Constitution, and the second involves the very critical question of fundamental rights. A proper understanding of the importance of the second issue arises from a clear understanding of the first.

The Constitution provides a clear framework for democratic and republican self-governance and allows any majority crafted pursuant to its rules to do much, up to and including amending the Constitution itself. However, at the same time, the Constitution is definitely “minoritarian” in that it forbids certain actions to that majority, no matter how large it is and no matter how clear its power is under the procedures the Constitution provides for.

If, for example, a huge majority votes in favor of a law forbidding Lawrence Auster from publishing material on the Internet, you, a lone individual, can march to U.S. District Court and get a judge to invoke the protections of the First Amendment. [LA replies: Here I must make the crucial qualification that prior to the wholly illegitimate Incorporation Doctrine which turned the Bill of Rights on its head, in effect changing the words “Congress shall make no law … abridging the freedom of speech” to “Congress, the respective state legislatures, and the respective municipal governments of the United States shall make no law abridging the freedom of speech,” I could only have appealed to a federal court against a national majority that sought to silence me. If a majority in a state or a locality sought to silence me, I would have had no recourse under the First Amendment.]

Despite the overwhelming and democratic wishes of 95 percent of all who voted, this one judge can rightfully and lawfully tell those people that their vote doesn’t matter because it touches upon a right that is not subject to the majority’s approval or modification.

So far, so good. I think we all understand that, at least so far as that principle is applicable to clear rights established (even better, widely agreed to be established) by the Bill of Rights. Thus, we arrive at the definitive answer to the first issue: our Constitution provides for cases where the democratically expressed will of the people is ineffective and that the instrument for rending it ineffective is the federal judiciary.

Now, let’s change our hypothetical and move it to an area that doesn’t fall squarely and obviously into the Bill of Rights: let us suppose our same overwhelming majority passes a law forbidding Kevin V. from fathering children under penalty of law.

There is no provision in the Bill of Rights or even the wider Constitution speaking to such an issue directly. Over the decades, our Supreme Court has had to deal with cases like these that while they do not touch directly upon an express right involve matters which historically have been held to deal with issues of liberty. The Court refers to such rights as “Fundamental Rights.” [LA replies: Yes, and this is precisely the meaning that the 14th amendment had before it was botched up by the Court. As explained in Government by Judiciary, Raoul Berger’s indispensable book about the 14th amendment and its perversions, the framers of the Amendment made it clear that the “privileges and immunities” which no state could abridge meant fundamental human rights—which are distinct from and more basic than civil rights and political rights. The immediate purpose of the Amendment was to overcome the Black Codes, by which the freedmen’s basic human rights, their ability to move about, to own property, to own a business, to function as human beings, was restricted.]

Over the years, the Court has found a number of fundamental rights incidental to liberty. These include the right to travel, the right to procreate and the right to raise children free from the interference of others.

In its Constitutional jurisprudence, fundamental rights are as protected as the clear and express rights in the Bill of Rights. So, in my hypothetical, I can march to the same District Court where you vindicated your right to publish on the Internet against the wishes of the majority and demand the judge overturn the overwhelmingly-approved law banning me from having children. And the judge will do so.

The concept of fundamental rights is necessary because experience shows that there are a number of very important aspects to liberty which are not expressly granted by the Bill of Rights or elsewhere in the Constitution.

And there’s the rub. Once one accepts that the Constitution is a minoritarian document which not only allows but compels the complete nullification of certain acts by the majority and, further, that there are certain fundamental rights that while aspects of liberty are not expressly set forth in the Constitution that require the same protection, one must also accept that we have bought ourselves the current controversy.

Which explains the shift in tactics over the last few decades by the left from the legislatures to the courts: Once a right is held to be “fundamental” it is placed nearly beyond the political process and is no longer a proper subject for debate. (This is also the reason why the left has moved internationally into the human rights business: once their policy prescriptions are dressed up as a fundamental human right, they are similarly beyond debate).

Given the state of our Constitutional jurisprudence to date on the subject of marriage, it is not at all a stretch to imagine a court finding same-sex marriage a fundamental right, especially given the language of controlling precedent, Loving v. Virginia, 388 U.S. 1 (1967):

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U. S. 535, 316 U. S. 541 (1942). See also Maynard v. Hill, 125 U. S. 190 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. [LA replies: this is substantive due process, a nonsensical concept through which half of the liberal revolution has been wreaked on us, the other half wreaked by the Incorporation Doctrine (I’m simplifying, but not by much). Due process properly refers to the action of a court, not the action of a legislature. And it means that normal procedures were followed before a person’s property, liberty or life were taken away, rather than arbitrary procedures invented to harm one person or class of persons. A state legislature passing a law saying that whites and blacks cannot marry each other is not a violation of due process. And even if we just look at it in terms of fundamental human rights, the right to marry a person of another race is not a fundamental human right in the sense that the right to move about, to own property, to own a business, is a fundamental human right. If people in a state don’t like the anti-miscegenation laws there, they can lobby to get the law repealed, and if that doesn’t work, they could move to another state. That’s self-government, folks! If one supports Loving v. Virginia, I don’t see on what ground one can oppose the entire judicial usurpation of legislative power.] The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. [Not under the pre-Brown regime! And Brown was wrong, a raw exercise of judicial power, totally without any basis in the Fourteenth Amendment, as even its supporters have acknowledged. Plessy v. Ferguson, which was overthrown by Brown, said “Separate but Equal.” Anti-miscegenation laws affect both races equally.] Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State. [LA replies: No. Not under our Constitution, but under the Constitution as hopelessly bent out of shape by the Court from 1930 onward.]

Substitute “racial discrimination” with “sexual-orientation discrimination” and there you have it. [LA replies: Even if one grants that racial discrimination in marriage is not allowed, there is not the slightest similarity between allowing a man and woman of two races to marry, and allowing two men to marry, since the latter is a contradiction in terms and an absurdity.]

If this is held, all the propositions and amendments and votes in the world do not matter, as a matter of law.

This is why proponents of traditional marriage do themselves no favors by hammering home the votes and the majorities in their favor: all these do is heighten the parallel to once widely-popular laws restricting “fundamental” rights on the basis of race.

U.S. Constitutional law is what it is. These precedents stand and are the law of the land. [LA replies: Those precedents are illegitimate, wholly without foundation in the Constitution. And there can be no serious conservative movement in America which does make central to its mission the undoing of the entire structure of Court decisions based on the Incorporation Doctrine and substantive due process.] In order to engage in this territory and win, opponents of same-sex marriage need to focus on two things and two things only:

One: Argue that while marriage is a civil right, the definition of marriage is one-man-and-one-woman and that no homosexual is denied that right since they are perfectly free to marry if they so wish, like any other.

And, when this loses (and it will), fall back to:

Two: Use the majority for traditional marriage to either amend the Constitution directly or remove the review of such matters from the federal judiciary’s jurisdiction. [LA replies: Yes, and I have said many times that the only sure way to stop same-sex marriage is through the Federal Marriage Amendment. However, that amendment would only address the marriage issue, not the “government by judiciary” revolution as a whole.]

LA continues:

While I have been heatedly making various points, Kevin’s argument is still right in this respect. Leaving aside how illegitimate are the actual controlling judicial precedents, those precedents do in fact control us at present; and, given those precedents, he is correct that arguing for majority rule and self-government only helps the liberals fulfil their script: we are the backward bitter bigots in the liberal script, arguing for discriminatory majority rule, which has been overturned time and again in the name of expanding rights, and which must be turned over again this time. Therefore, as Kevin says, our best argument is the simple absurdity of same-sex marriage, and, if that fails, the only recourse is a Constitutional amendment, which of course has been my position from the start.

Kevin writes:

My goal here was, of course, to explain where we are in constitutional jurisprudence and not where we should be and therefore what our tactics should be, and I’m glad in your last comment it is clear that you understand that to be my point.

LA replies:

The reason I raised those objections before finally agreeing with you is that we must not simply accept as a given, or as normal, the revolutionary illegitimate situation we’re in. True, we have no ability to change it now or in the foreseeable future, and we have no choice but to deal with it as it is; but we must not simply accede to it either. We must be aware of how we got here and see the wrongness of it. Otherwise, we are locked inside the nightmare house of mirrors liberalism has constructed, not even aware that it’s a nightmare, and thinking that it’s reality.

So, for example, the Incorporation Doctrine exists, along with the vast network of judicial decisions based on it. But if we mindlessly and without reflection accept the notion, born of the Incorporation Doctrine, that the words “Congress shall make no law respecting an establishment of religion” somehow mean “Congress and the state legislatures shall make no law respecting an establishment of religion,” without wondering how the first got to mean the second, without wondering how a constitutional provision aimed at limiting the power of the federal Congress over the states got transformed into a provision giving the federal courts unlimited power over the states, if we know nothing of the massive Orwellian reconstruction of the Constitution that had to be effected for this to come about, then we are blind to one of the key building blocks of the modern liberal order and have no basis to oppose it or criticize it. We’re fish swimming in a liberal ocean, not knowing that it’s a liberal ocean. And, to change metaphors, my desire is always to see a conservatism that is able to oppose liberalism because it stands on ground separate from liberalism, rather than the conservatism we actually have, the conservatism that imagines itself to be opposing liberalism, but in reality is lost inside liberalism and utterly subject to it.

Kevin replies:

Thanks for the extended reply. I completely agree that conservatism must stand on its own and reject the liberal assumptions. But those assumptions arose as responses to real issues thrown up by our people, issues that will continue to arise. If we are to offer a credible alternative, we need to be sure we have something to offer that addresses those issues short of rejection.

Here is my thinking on this point: I accept and believe that there are some rights that are not subject to majority approval or modification. If a people are to empower a judiciary to secure those rights, the judges will necessarily have to have the absolute authority to disregard popular feeling, even if expressed in a way that conforms exactly to legislative requirements.

We could say, in that environment, that such rights are limited only to those expressly set forth in the Bill of Rights. That is a position, though I think that our experience as a people has shown that changing circumstances continually give rise to cases involving aspects of liberty—as that concept is understood in our British common law heritage—that could not possibly have been anticipated in advance. For example, do human beings have the right to be born free of pre-natal genetic engineering? I would say yes, but no one setting forth a new bill of rights to bind judges who was writing in 1950 could have possibly anticipated the need for such a clause.

If we accept that all such fundamental rights are not subject to being reduced to writing for now and always, someone is going to decide when “new” fundamental rights are called for.

This is the basic horn of the dilemma: we want judges to be able to ignore majorities to secure rights but in doing so we have given the judges the power to ignore majorities in favor of rights we would not have recognized when we gave judges that power.

It seems to me that there are three possible responses to that dilemma:

One, it is better to be ruled by a democratic assembly than unelected judges, so we dump the power of judges to overrule majorities. (This is the French revolutionary view, wherein the unicameral National Assembly is all-powerful).

Two, we adopt the principle of limited government, wherein judges are held to enforcing only listed rights, allowing the people to add to the list through the democratic process. This, however, raises the prospect of a majority refusing to so act, leaving a potential important right unenforceable and any complainant without a remedy. [LA replies: It’s called self-government, or, indeed, simply, government. Under any government, there is going to be a highest authority that cannot be appealed. Some person, somewhere, is going to have ultimate authority. And any ultimate authority can be seen as unjust from some angle or other. Your argument seems to imply that unless every authoritative decision that someone doesn’t like can be appealed, we’re living under an unjust system. But by this standard, all government is unjust.]

Three, we accept the framework of the current system but rely on the power of culture and tradition to restrain exercise of that power.

One seems unwise, two seems unrealistic and we know the outcome of three.

Even if we were to witness a wholesale change in U.S. constitutional law in the manner in which you outline, there is still nothing really stopping a California state judge from nullifying a Prop 8 result using the same power to ignore and overturn legislation that violates fundamental rights found in that state’s constitution. The problem is more fundamental than the 14th Amendment having gone over-broad: it is a key problem in the common law tradition.

To my mind, the only way to check it is for a strong traditionalist people to exercise its right to amend and strip a judiciary of jurisdiction when necessary, but, I admit, this is a poor remedy at best.

LA replies:

The only ultimate remedy is the self-assertion of the people, who are the source of sovereign power in the first place. As I’ve said before, when Roe v. Wade was issued, a decision in which the Supreme Court simply wrote a new law for the United States out of thin air, there should have been something like a revolution in this country demanding impeachment of these judges. And it should not have let up, even if it failed to get them impeached. That kind of popular outrage would at least have had the effect of making the judges pull back from their usurpations in the future. We don’t have the right to consider ourselves the heirs of the Founders, when we fail to rise up against transgressions of liberty that dwarf the transgressions that led to the American Revolution.

Posted by Lawrence Auster at November 25, 2008 09:47 PM | Send