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Is Constitutional Conservatism Neither? How Mistaking Our Nation to Be Constituted by One Document Offends Rule of Law

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      If gay rights are fundamental, they require judicial protection. 

Today, even ascendant national support for gay rights still falls short--far below thresholds for the congressional and state-by-state supermajorities required for proposing and then adopting a change to constitutional text. Such an amendment could be blocked in Congress by negative votes of senators from just seventeen states or denied ratification by just thirteen states. Because the 1788 Constitution's mechanism for formal change affords equal say to even the least-populated states, it matters that national support of same-sex marriage reflects strong-majority support in a relatively-small number of states, albeit many of the most-populated. Most federal senators from the opposing majority of states would follow their state's sentiment and vote against proposing any gay rights amendment. Or, should such a proposal garner two-thirds votes in the Senate and House, at least one-quarter of state legislatures or conventions would vote in opposition and thus deny ratification--at least in the near future.

The Court will treat the trend of state majorities favoring gay rights as supporting yet not deciding whether those rights presently are fundamental. Support for same-sex marriage peaks with younger voters and generally diminishes with each older age group. That suggests someday either (i) every state will recognize the right or (ii) a sufficient national supermajority will coalesce, agree on new constitutional wording, and adopt a gay-rights amendment. While rights would thus come for all gays through the political process--someday--as they ultimately did for the enslaved and women, our constitution does not countenance deferring an inalienable right.   On the other hand, the Court sometimes considers societal trends as one factor for assessing whether a claimed unenumerated right is inalienable in the first place. For example, the Court recognized the widening judgment of states and foreign countries that executing one mentally incapable of understanding that punishment violates a fundamental right, and that was relevant in the Court's assessment of that claimed right under our constitution. Conversely, the Court might find the relatively-small number of our states that have thus far found denial of same-sex marriage to violate their state constitution, or have voted or legislated for gay rights, to be a factor against recognizing such a right to be inalienable today.

Acknowledging that majorities do not determine individual rights only moves the inquiry forward, into the grey reality of constitutional adjudication. For example, principles outside text establish that Dred Scott was wrongly decided. The Court in 1858 should have followed principles of basic human dignity, including those of our Declaration of Independence, and recognized that Scott was entitled to have his claim heard and could not be considered property. On gay marriage, the Court may soon decide whether similar principles of basic human dignity, precedent, and societal trends if deemed relevant, either establish the claimed unenumerated right or justify subjecting gay rights restrictions to heightened scrutiny under the Equal Protection Clause (as explained below).

Though those principles are grey, that analysis inherently fuzzy, the Court can articulate fundamental rights in a way that conforms to conservative values and reflects judicial restraint, as described below.

  Judicial Interpretation's Conservative Character  

I cannot conceive how any man can have brought himself to that pitch of presumption, to consider his country as nothing but carte blanche, upon which he may scribble whatever he pleases.

Edmund Burke (philosophical forebear of modern conservatism)   

Limiting constitutional development to only the amendment process also would offend the conservative preference for incremental change. That conservative ideology traces to thinkers like Burke--especially his 1790 critique of the French revolution. Modern Burkean conservatives argue radical change risks unforeseen consequences and sacrifices benefits embedded in tradition. Change to law, they say, should follow experience, not abstract ideas, and be proportionate to change in social conditions. Hence, change in constitutional understanding is more suited to case-by-case judicial development than to creating constitutional text to be ensconced by amendment, difficult to later alter or undo.

Compounding the potential harm from an amendment's sharp break with tradition, society's complexity hinders predicting effects of change. In The Road to Serfdom (1944), Austrian economist Friedrich Hayek posited central planners' fundamental problem: inevitable gaps in knowledge of present situations denies certainty about outcomes of reforms. The many American conservatives who purport to follow Hayek thus should find incremental constitutional interpretation superior to formal textual change, amendment placing unwarranted trust in our ability to know the future direction of society and to plan centrally.

Consistent with those principles, conservative justices did not require any amendments to establish, for instance, that campaign contributions are constitutionally protected expression, though constitutional text protects only "speech," or that the government's mere regulation of property use triggers a right to compensation, though the Takings Clause of the Fifth Amendment applies only to property "taken." Instead, those concepts developed through a century's incremental judicial decisions, now constitutionally enshrined in precedent, precedent yet subject to further refinement based on new circumstances or evidence of practical unworkability.

  Judicial Virtue: Prudent Appointments and Moderated Adjudication

While judicial interpretation proves necessary and desirable, and some resulting precedent eventually enters our constitution, even liberals acknowledge judges' discretion needs guides and limits. And our system does promote such virtuous adjudication in many ways. Most judges--liberal to conservative--labor to respect bounds and follow principles. All federal judges and many state high-court judges have the independence arising from not having to stand for election--crucial for the judicial role in protecting minority rights against political influence of potentially-tyrannical majorities. Moreover, the best have a professional record that correctly predicted judicial ethics and restraint at the time of their appointment, as well as strong legal knowledge, experience, and analytical ability. Those attributes equip them to develop constitutional interpretations thoughtfully, incrementally, and only when necessary. That the final say falls to multi-judge appellate courts dampens individual influence. Moreover, they apply various limiting principles that further constrain their discretion. And empathy plays a positive role, sometimes enhancing objectivity.

      Empathy's moderating virtue. 

Judicial discretion critics especially dislike that judges must determine whether rights not codified in constitutional text are inalienable and thus protected, decisions they think rife with personal bias. Typical are recent arguments against "empathy," especially during the confirmation process for Justice Sotomayor.


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Darren Latham, associate professor at Florida Coastal School of Law in Jacksonville, teaches constitutional law, comparative law, and international commercial law courses and writes on constitutional history and theory.

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Is Constitutional Conservatism Neither? How Mistaking Our Nation to Be Constituted by One Document Offends Rule of Law


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Most constitutional scholars, constitutional law p... by Darren Latham on Thursday, Jun 13, 2013 at 9:23:44 AM
of the U.S. and you'll see that the Constitution i... by Daniel Geery on Thursday, Jun 13, 2013 at 1:06:06 PM
Any legal system which fails to accord rights to t... by Vietnam Vet on Thursday, Jun 13, 2013 at 5:52:07 PM
I agree with much of this post. On the second poin... by Darren Latham on Sunday, Jun 16, 2013 at 11:54:42 PM
It is the spirit, not the text that counts. And ev... by BFalcon on Thursday, Jun 13, 2013 at 6:02:44 PM
I couldn't agree more. This is a well written, tho... by Opacus Black on Thursday, Jun 13, 2013 at 7:39:29 PM