Is it possible that the courts - one of our most important "auxiliary precautions" - are undermining republican liberty?
Many things will be said in the coming days about the Supreme Court’s holding in Obergefell v. Hodges, better known as the same-sex marriage case. I don’t think I can in general improve upon the dissents written by the four Supreme Court justices—who object to the sweeping and poorly reasoned argument offered by Justice Anthony Kennedy as the “reasoned judgment” of a “bare majority” of his colleagues. But I think I have something to add to the discussion regarding Kennedy’s understanding of his role as a Supreme Court justice.
The core of Kennedy’s argument is a version of “living constitutionalism,” in which succeeding generations discover new and different implications of terms like liberty (which can be found in the Constitution) and dignity (which can’t and so has to be read into it). Here’s how Kennedy puts it in his opinion for the majority:
The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.
This passage, lifted almost verbatim from Kennedy’s opinion in Lawrence, stands for the proposition that the words of the Constitution don’t mean merely what their authors thought they meant, nor what those who voted to ratify the document and its amendments thought they meant. We are ever learning the fuller meaning of those words, especially (apparently) of liberty. Of course, how Kennedy can be certain that we are in fact learning a meaning or gaining a new insight isn’t altogether clear. His language suggests that there’s a kind of meaningful historical development of autonomous individualism, so that there is a kind of, say, philosophic discipline governing our insights. We’re not simply making it up as we go along, expressing the random preferences of our age, but rather unpacking the logic of individualism that was always implicit and becomes more explicit with the passing of time. Kennedy, like the great German philosopher G.W.F. Hegel, must be sitting at a privileged historical moment that enables him to understand that he has captured at least something of the true fullness of the meaning of individual liberty.
Now, there’s something about this kind of wisdom, which I learned from reading Plato’s Republic and Aristotle’s Politics (both works offer at best faint praise for democratic or republican self-government): the wise man or philosopher-king who genuinely knows what’s good for us (or in this case who knows what we mean by liberty) doesn’t require the consent of the governed. Knowledge is a serious claim to rule. To this degree, Kennedy doesn’t have to wait for the duly elected representatives of the people to catch up with his insight. Indeed, he doesn’t even have to wait for the people to catch up. He can impose it upon us, for our own good, from the bench.
To be sure, Kennedy might claim in a certain sense to speak for us, as Damon Linker does in a very bold column. Writing against the dissenters and conservative commentators who find in Kennedy’s opinion a judicial usurpation of democracy, Linker insists that it is in fact a triumph of democracy. The breathtakingly rapid shift in public opinion on behalf of same-sex marriage is, in his view, encapsulated in the Supreme Court’s decision. The ordinary political processes—public debate, lobbying, and, above all, regular legislation in the states that (as recently as two years ago) Kennedy said were supposed to be responsible for marriage legislation—can be dispensed with because the Supreme Court has spoken on behalf of the people.
This line of argument reminds me of another work in political philosophy, Jean-Jacques Rousseau’s On the Social Contract. In that work, Rousseau argues that the general will—what we ought to think and enact legislatively if only we clearly understood ourselves and our particular circumstances—requires a Legislator, whom he describes as follows:
In order to discover the rules of society best suited to nations, a superior intelligence beholding all the passions of men without experiencing any of them would be needed. This intelligence would have to be wholly unrelated to our nature, while knowing it through and through…
It’s hard not to think of Rousseau’s Legislator when contemplating the way in which Kennedy speaks, as he thinks, on behalf of our understanding of liberty as synonymous with expressive individualism. For him, liberty isn’t what Clarence Thomas says it is in his dissent, a right against interference by others (including government) protected by a complicated institutional structure. It is rather what the Supreme Court, as Legislator, discerns on our behalf, and orders to be bestowed by, in this case, all fifty states. We must be forced to be free.
I only wish that Justice Kennedy were aware of the cautionary note that Rousseau strikes in his discussion of the legislator:
The legislator occupies in every respect an extraordinary position in the State. If he should do so by reason of his genius, he does so no less by reason of his office, which is neither magistracy, nor Sovereignty. This office, which sets up the Republic, nowhere enters into its constitution; it is an individual and superior function, which has nothing in common with human empire; for if he who holds command over men ought not to have command over the laws, he who has command over the laws ought not any more to have it over men; or else his laws would be the ministers of his passions and would often merely serve to perpetuate his injustices: his private aims would inevitably mar the sanctity of his work.
The true Legislator is an extraordinary figure who faces almost irresistible temptations. The legendary Lycurgus, who legislated for Sparta, might have been able to avoid falling prey to all-too-human weaknesses. Anthony Kennedy, our would-be apostle of the new and true meaning of liberty, has not.