Strengthening Constitutional Self-Government

No Left Turns

Prop 8 and the Living Constitution

In today’s LA Times Brian Gray, a law Professor in San Francisco, argues that the Supreme Court should overturn California’s ban on gay marriage. Gray argues that the prohibition unconstitutionally singles out a class of people and denies them a right.

But where does this right come from? Clearly, this right is not an ancient right, as marriage in just about every place in history, including throughout the US until very recently, required that marriages include at least one man and one women, and, quite often, only one man and one woman. That being the case, the argument for constitutionally mandating gay marriage must rest on the idea that the Constitution is a living document which ought to follow the evolving understanding idea of rights in our society. In recent years, prohibitions on gay marriage have passed repeatedly, often by large margins. Hence it is rather hard to argue that there is a new social consensus in favor of gay marriage. And such new consensus is the only thing that can justify the discovery of such rights. Or do the supporters of the living constitution think that the law ought to reflect the beliefs of law Professors?

Discussions - 10 Comments

Living Constitutions must have living rules about how to read them--it's only logical, after all. If a Constitution is a living and breathing document, the way one approaches it must reflect that vibrancy and life and it cannot be held down by stale notions of "jurisprudence" or precedent. In the old days you had to at least present the cover of social consensus if you meant to read things into the Constitution that were not, on the face of it (or in any rational reading) there. But perhaps that--like the old Constitution that reflected the solemn will of the American people and could not be altered but by their consent through a solemn process--is just a relic to these legal minds on the vanguard of legal history.

Speaking to the theological side of our political tradition, when the living Constitution replaced the vestiges of the Living God (evolved away by Darwinism), we get the priesthood of law professors Steve alluded to. A hymn to change is its Te Deum.

Re my comment above: I meant "Richard," not Steve. Sometimes I get those guys confused.

Julie, I think we conservative defenders of the constitution get the "living constitution" wrong when we think of it as permitting any development in any direction. Theoretically, it is open to that; that is, theoretically, it is as open to unforseeable developements as is Richard Rorty's "philosophy." But as a practical matter, the living constitution always aims at, and thus is governed by, what Justice Brennan called "libertarian dignity." He says this in the best articulation of living constitutionalism I know of, the "Address to the Text and Teaching Symposium." Some day, if Obama and his allies get their way, this text will be seen as fundamental to the American understanding as Madison's "Memorial and Remonstrance" or Washington's "Farewell Address," or Lincoln's "Gettysburg Address." Every conservative should read it to see what the alternative regime that is being held up to our citizenry consists of, and how its "leader-cult" case for judicial rule works.

Richard, what an egregious piece, note that the good Dr. Gray, has the cheek to say that the Romer case was that of a conservative court, and thus is a precedent that will have to do until the full ramifactions of the new Obama-era have sunk in/taken hold. I find his mindset alarming--Lord knows what a Progressive court would look like in this guy's eyes, and know darn well that this is the sort of guy that will be advising Obama and his successors in the West Wing about who to pick. Trust me, every alarmist thing you've ever read about Obama pales compared to this regime-killing stuff, the stuff, so unfortunately, that lies at the heart of the contemporary Democratic Party and its allies in the media and academe.

The equation is very simple: If oligarchs chronically overturn the people's will (for whatever reason), democracy crumbles. I think they call it legitimacy.

Richard, re your last question, to ask it is to be answered. :-)

Two straight men can't get married either. Gay is not a race.

Further to Brutus's comment (#7), a gay marriage "prohibition" does not "single[] out a class of people and den[y] them a right." Rather, such a law merely says that the legal benefits attaching to the label of "marriage" apply only to the activity traditionally known by that name in Western society, specifically, the union of one man and one woman. Thus, traditional marriage - union with one person of the opposite sex at one time - is available to all adults, and there is no "discrimination" against those who are attracted to people of the same sex.

The basis of arguments for judicially imposing the recognition of same-sex marriage is the notion that sexual preference is such an essential characteristic of a human being that to limit marriage to opposite-sex relationships renders marriage unavailable to those whose sexual preference is for people of the same sex. This is a plausible view, but nothing in the constitution, or in democratic principle, supports judicial imposition of that view on a citizenry that rejects it.

do the supporters of the living constitution think that the law ought to reflect the beliefs of law Professors?

That is what's called a "rhetorical question". Yes, they do indeed believe that.

I might ask whether the right to vote should be denied to persons under 18, which strikes me as the rankest discrimination by the lights of some of the complaints about denying marriage licenses to same-sex partners.

The answer to this question would illuminate the question of limits on marriage. Let me just hint that it has something to do with "reason" and "nature."

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