When I was a college undergraduate, I subscribed to a very rigid legal philosophy not too far removed from the originalist views of Robert Bork. The judiciary, in this viewpoint, does not exist to protect minorities, foster stability, or hand down rulings based on an ethical sense of justice. For instance: I am gay, and I support same-sex marriage. But if I were a judge, I believed, I would have to concede that the Constitution does not justify a national mandate for marriage equality. My personal sense of justice, then, is and should be irrelevant to the rule of law. Rather, justice is an institutional process: if the letter of the law has been carried out, then that is justice, properly understood, in a legal context. If same-sex couples want their marriages recognized by the government, then they will have to work through the legislature — not appeal to judges when they can’t get what they want through the standard channels.
To be sure, I still sympathize with this view. Respect for the letter of the law is vital to a healthy, well-functioning judicial system. But I am no longer so certain that a strictly originalist position is the most prudent approach to the law. Antonin Scalia has declared that he believes in a ‘dead’ Constitution — one that does not change with time. But while the logic and principles of the Constitution are indeed timeless — ‘dead’ — the particulars and circumstances of our lived experiences are always changing. This is why Edmund Burke, that great conservative statesman, declared that ‘change is our means of preservation.’ The way that we apply our deep-seated principles, then, will not be the same in all places or at all times. The law must exist to serve mankind, not the other way around. And the spirit of the law is just as important as the letter of the law.
Scalia asked a characteristic question to Ted Olson in this week’s Supreme Court proceedings:
“We don’t prescribe law for the future,” Scalia said. “We decide what the law is. I’m curious, when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868? When the Fourteenth Amendment was adopted?”
Olson countered that with a question of his own, bringing up two past high-profile cases involving discrimination. “When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools?” Olson asked.
The two went back and forth, with Scalia repeatedly questioning when, specifically, it became unconstitutional to bar gay couples from marrying. Olson argued back, but ended up conceding that there was no specific date.
“Well, how am I supposed to how to decide a case, then, if you can’t give me a date when the Constitution changes?” Scalia said.
The problem with Scalia’s question that he is projecting his premise — that the Constitution is completely “dead” and therefore is not subject to any sort of change over time — onto Olson’s argument. He seems to imagine that a more expansive view of the Constitution’s application would necessitate some sort of magic moment in time in which recognizing same-sex marriage became Constitutionally necessary — as if something, at once, descended from the heavens into the document. But the question of equal protection for same-sex couples is not an esoteric, metaphysical one — it is the question at hand that the Court is facing! Given the contemporary context (the one in which we live, after all) does it make sense, given the logic of the Constitution and of legal precedent from analogous cases, to issue a mandate? This is what a judge should be asking himself. The law is not something ‘out there’ like Platonic forms — it is a system of regulating human behavior. The law exists to serve human needs, and it is the job of a justice to apply it prudently.
Social conservatives fear that without an objective, timeless definition of marriage, the institution will become arbitrary and meaningless, leaving us with no valid reason to deny marriage licenses to, say, polygamous couples, or people who want to marry inanimate objects, or even children. But the reason that we could still deny marriages in those cases is quite simple: because that is not the kind of society that we live in. Those aren’t the choices and values that we honor and respect. It would be imprudent and highly impractical to mandate that we legally recognize those relationships. The reason that social conservatives think that we might have to is because they are trapped in a mad quest for metaphysical objectivity — as Prof. Robert P. George’s recent book against same-sex marriage, lauded by the Christian Right, makes quite clear. But marriage has never had an ‘objective’ definition — not a legal one, let alone a metaphysical one. The definition has varied across the ages. It is changing again, just as it will surely change again in the future.
To be sure, it would be highly preferable for this sort of task to be carried through by the legislature — the superior option for ensuring social and political stability. But there wouldn’t be anything inconsistent with our country’s legal history or with the principles of the Constitution to grant marriage equality through the judiciary, either. It would be a reasonably logical extension, not an upending, of its principles. This is the ‘living Constitution,’ properly understood, at work. And there is nothing unconservative about it.