Whatever one's view of gay marriage, one has to admit that many arguments in favor of it rest on some notion of basic rights. Whether that claim is true is not my concern now. However, in the interest of full disclosure, I think that it is. Whatever one's conception of basic rights, in a constitutional democracy such as our own, such rights are guaranteed by the constitution's bill of rights at the federal level, and by state's constitutions at the state level. The structure our constitutions guarantees that constitutional rights do not depend in the first instance on the whim of the people. We cannot vote that some minority group be stripped of its constitutional rights. Constitutional rights are guarantees, aren't they?
Let's set the stage. Here's aspiring legal scholar, George Will:
In November, 13,402,566 California voters expressed themselves for or against Proposition 8, which said that their state's Constitution should be amended to define marriage as a relationship between a man and a woman. The voters, confident that they had a right to decide this question by referendum, endorsed Proposition 8 by a margin of 52.3 to 47.7 percent
Well, that's the question isn't it–whether the voters were acting constitutionally (thinking you are, by the way, does not mean you are). Do the voters get to decide which rights people have according to the constitution by constitutional referendum? On the one hand, the constitution is malleable by referendum. And good thing too. But Will argues that this right has no boundaries. But this power of referendum certainly cannot be infinite. I mean, for instance, you can't have explicitly contradictory provisions. That would mean legal chaos. You cannot, in other words, answer every constitutional question by referendum. This way we cannot have an election stripping Mormons of the right to vote, or women of the right to be physicists. So, in other words, which rights are of this type is the question. Does civil marriage constitute one such right? Here's Jerry Brown (in the words of George Will):
Now comes California's attorney general, Jerry Brown — always a fountain of novel arguments — with a 111-page brief asking the state Supreme Court to declare the constitutional amendment unconstitutional. He favors same-sex marriages and says the amendment violates Article 1, Section 1, of California's Constitution, which enumerates "inalienable rights" to, among other things, liberty, happiness and privacy.
And that's an interesting argument, I think. If certain rights are inalienable, then it's constitutionally prohibited that they be alienable by referendum, even if that referendum was believed to be constitutional by the voters. The proper place to answer such questions–that is, about the constitutionality of the questions–is also provided in our constitutions–the courts, whose job it is to interpret the law. One needs generally to interpret documents whose meaning and provisions are sometimes unclear. And this seems like an instance of that. But not to George Will:
Brown's audacious argument is a viscous soup of natural-law and natural-rights philosophizing, utterly untethered from case law. It is designed to effect a constitutional revolution by establishing an unchallengeable judicial hegemony. He argues that:
The not-really-sovereign people cannot use the constitutionally provided amendment process to define the scope of rights enumerated in the Constitution; California's judiciary, although established by the state's Constitution, has the extra-constitutional right to supplement that enumeration by brooding about natural law, natural justice and natural rights, all arising from some authority somewhere outside the Constitution; the judiciary has the unchallengeable right to say what social policies are entailed by or proscribed by the state Constitution's declaration of rights and other rights discovered by judges.
What is natural justice? Learned and honorable people disagree. Which is why such consensus as can be reached is codified in a constitution. But Brown's reasoning would make California's Constitution subordinate to judges' flights of fancy regarding natural justice. Judges could declare unconstitutional any act of Constitution-revising by the people.
That's the constitutional role of the judiciary (as established by case law). Their having this role does not mean the people of California are not "sovereign." That misses the point of Brown's objection. And it misses the point of our constitutional structure. It's the constitutional job of the judiciary to interpret the law. How do they do that? You can't ask the law you're interpreting, because you have to interpret it. What to do? Antonin Scalia, for instance, uses a dictionary. Clarence Thomas, get this, natural law–whatever that is.
Oh no. Let’s not go into the legality of it. The law pretends at being ruled by logic, while its premises are based on 17th century science and philosophy, and then that logic is subject to interpretation of impressionable juries and partisan justices.
Oh… I meant 18th century…
Well said, John. The central point is that there is a constraint on revising constitutions — that of consistency. If there is a demonstrable inconsistency, then we must then adjudge which of the set of mutually inconsistent commitments must be revised.
There are two questions, then, regarding the role of the judiciary. First, determining whether there is an inconsistency, and second, adjudging what revisions are necessary. The first role is certainly one having to do with interpretation. I, however, am curious about the second.
You write: “You cannot, in other words, answer every constitutional question by referendum. This way we cannot have an election stripping Mormons of the right to vote, or women of the right to be physicists. So, in other words, which rights are of this type is the question.”
This seems right, but you’d argued that this is a consequence of the consistency requirement — it is, but only if we think that, for example, equal protection takes priority over the revisions to the constitution. I think it does by the very nature of proposing a constitution — namely, to protect minorities against the tyranny of the majority. A consequence, then, is not only that there are logical constraints of consistency on constitution-revision, but constraints of, for lack of a better term, *constitutionality*.
I’d tend to agree with what you said Scott, particularly the last point. If I were to give a “thicker” argument for this view, I’d argue that certain constitutional provisions are more foundational than others. Equal protection, for instance, is more foundational than, say, the number of years one can serve in Congress–even though they both are in the constitution. One would of course have to have an “extra constitutional” moral theory to justify this, but the need for such a thing does not ipso facto mean all disagreement regarding it is “reasonable.”
Right about (un)reasonable rejection of these sorts of things, and right, I think, about independent grounds for holding some rights to be inalienable and others not — what if the framers for California’s constitution deemed slave-owning or wife-beating an inalienable right? The simple fact that it’s said to be so in the constitution doesn’t yet make it so that it can’t be revised. This does make the justification of constitutions (especially if their legitimacy be contingent on the consent of the governed) a vexing issue, since there’s not much consensus on what moral theory justifies a constitution, but that is a separate issue from the case from rights here.
Anyone have a link to the AG’s brief? I’m curious as to what ” a viscous soup of natural-law and natural-rights philosophizing,” looks like.
Closest I can get is http://www.courtinfo.ca.gov/courts/supreme/highprofile/prop8.htm#S168078 but I can’t find the AG’s brief.
Nevertheless, Will’s point seems to be that there is little case-law that would support Brown’s argument. If the only arguments that an AG should be making are case-law arguments then this would seem to be a reasonable criticism of the argument. Given the scorn that Will heaps on Brown’s philosophizing about natural justice, this would seem to be one of his arguments.
However, the second argument is that if the court were to decide against the referendum, that is, if they were to follow Brown’s argument that they decide the question in the light of “justice” rather than simply precedent, then they would a) overstep the bounds of judicial authority and b) institute a “unassailable tyranny” of the minority.
Whether (a) or (b) follow from this is not at all clear to me, primarily because I don’t entirely understand what they mean. Certainly on some plausible understandings of “judicial authority” and “tyranny” (a) and (b) do not follow. But presumably this is becuase Will is invoking a very narrow view of judicial authority and therefore a very low bar for judicial tyranny–probably on his view we already live under an “unassailable tyranny” of judicial minority.
“One American Heritage dictionary definition of “jesuitical” is “given to subtle casuistry”; one of that dictionary’s definitions of “casuistry” is “specious or excessively subtle reasoning to rationalize or mislead.” These definitions, although unfair to Jesuits, are descriptive of Brown’s argument.”
Quintessential Will–an unnecessary reference to a ready-to-hand reference work that is then not quite appropriately applied (I’m guessing a bit here) to the case at hand to make his point which fails even to succeed at being pretentious, never mind succeed at the sort of stinging criticism, I imagine that Will imagines he is achieving. (I think Alterman somewhere in his book on the punditocracy insinuates that these are often handled by research assistants which might explain the clumsiness in this example).
This post seems monstrously OT on a number of levels. Yet it has opened a topic about which I am convinced we need to delve deeper than merely noting … what George Will said. I should probably not post this, but that would require a level of self-discipline that I’ve not habitually demonstrated. Anyway …
The above is not a question that can be answered within “logic,” as logic is “traditionally” (i.e., in contemporary academic circles) understood. This is one of the reasons why I am unhappy with that “traditional” understanding. I think Jaakko Hintikka (and, from a very different background, John Dewey) are correct in tracing their meta-logical theories back to an unpopular (but correct) reading of Aristotle, that sees logic as erotetic; that is, as the theory of inquiry.
I mention this here because if one treats logic as nothing beyond the formal manipulation of propositionally related symbols, a topic such as this one founders upon the shoals of presuppositions that do not open themselves to merely formal manipulations. But if we see logic as the systematic organization of information such as empowers (sorry for using that word) us to ask better questions, then ethical/legal questions are indeed profoundly logical matters.
IF — big “if” — one is willing to move within those presuppositions, “logical” sources that could inform this discussion include Aristotle, Kant, John Dewey, and Martin Luther King. The latter is of particular interest because of his synthesis of the previous thinkers (as well as many others). King would argue that the moral vs. legal issue is one of whether the human law conforms to the moral law. In his Letter from a Birmingham Jail, King set out a set of criteria by which a process of inquiry — i.e., logical reasoning — might determine if and whether such a conformity is in place. Does the human law uplift the person, or degrade the person? (King uses the phrase “human personality,” which has since become much more psychological than he intended.)
I have yet to see any evidence to suggest that George Will is capable of even entertaining the abstract possibility of considering such subtleties. Perhaps, though, we should. In which case, did Prop. 8 uplift the human person by degrading a whole class of them to non gratia status? (Anyone who has trouble recognizing the rhetorical nature of that question needs some serious “us” time behind the wood shed.)
The first inalienable right — the logical possibility of any such thing as an inalienable right — is personhood. Any law, any referendum, any suggestion, any person or thing, that denies such personhood to any person is an assault upon the logical possibility of any rights, since it is an assault upon the actuality of inalienable rights.
Too long and too brief as the above has been, I submit that this is the approach one ought to consider upon logical grounds.
(Personal impulse control issues: Gary hits the “submit” button …)
JC, I wish you would post on this topic more often. Your analysis is a great contribution to those of us who engage this issue regularly.
Here’s the link in case anyone is interested in “viscous soups”
http://ag.ca.gov/newsalerts/release.php?id=1642&#attachments
The viscous soup that Will seems to being referring to is an argument concerning the California framer’s intent, as well as precedent both in several California decisions as well as federal decisions.
The key argument is that inalienable rights cannot be revoked by the sovereign. And of course in some of the conservative response to this argument, the claim is ridiculed because it supposedly involves holding that there is an inalienable right to same-sex marriage.
“While respondant does not suggest that the Framers contemplated that liberty interests include a right to marry that extended to same-sex couples, the scope of liberty evolves over time as determined by the Supreme Court.”
The brief argues that the Framers would not have considered contraception to fall under protection of the fundamental liberties, it did so in Griswold. The right to marry has been recognized by the Supreme Court is an aspect of fundamental liberty.
Since the California Supreme Court argued previously that the notion of marraige was not limited by 19th century conceptions of marriage and that therefore the right to marry extended to same-sex couples, the brief concludes that the right to marry now falls under the scope of Article I’s protection of fundamental liberties (this is an appeal to precedent).
Secondly the Framers did not give the legislature the power to revoke fundamental rights (without at least a compelling reason to do so). If this was not granted to the legislative branch, then they did not intend to give that power to the people. (This is interpretation of original intent bolstered by precedent that confirms that that interpretation has been held by the court).
Therefore, the brief argues that the Court should consider the question whether there is a compelling reason for the abrogation of a right that falls under the scope of Article I’s fundamental rights.
Interestingly, the brief argues against the other three primary legal arguments made in the three cases seeking to overturn Proposition 8.
I’m not sure what the rest of you think, but I find it strikingly cynical that Will has so grossly misrepresented the AG’s argument. There is very little “natural law” and very little philosophizing about natural justice. Insofar as these are touched on in this brief, they are represented as the views held by the framers and therefore as a clue to interpret their intention.
I suppose it’s possible that Will just didn’t bother to read the brief–at least then he wouldn’t be so seemingly guilty of such a gross straw-man argument.
Interesting point. But I think he would still be guilty of a straw man if he didn’t bother reading it. I suppose one could come up with a name for that. Argumentum ab ignoratione perhaps.
You’re right. But the vice would be laziness rather than cynical deception.
Well, actually it would be a hollow man, in that he’s just making up an argument and then knocking it down.