Final Thoughts on Our Constitution

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As we began this conversation I was not sure what direction it would take. How would we agree? How would we disagree? One of my former teachers used to say that we have to rise to the level of argument. That is, we have to so clarify our terms and our meanings such that our claims and counter-claims can actually engage each other. I think we’ve achieved some degree of that, and I want to again express my appreciation for this project and to Kathy Lee for pressing me to think harder about justice and our constitutional order. While there is no doubt we will not have exhausted our exploration of this issue, I think we’ve clarified some things and done so with more light than heat.

Kathy’s last entry posed several incisive questions. In this final contribution to this month’s conversation, I’ve organized my response as answers to a series of questions. I’ll conclude by posing a question for Kathy and myself, and the readers.

 

Do courts have a role in securing justice in our constitutional system?

Kathy understandably presses me on my preference for legislatures when it comes to representing the people’s vision of the common good. The people, after all, can authorize their representatives to pass unjust legislation. Isn’t it the case that our Constitutional system, and the 14th Amendment in particular, empowers the courts to police the excesses and injustices of our legislatures?

Kathy seems to frame the issue as if it is a case of the Court watching over the people’s decisions and in some cases intervening to save the people from their bad decisions. I’ve already pointed out that this is no guarantee of a substantively just outcome, as courts can get it wrong as often or more than legislature. I think Kathy has agreed to this in principle. There’s also a strong case to be made that even when the Court gets it right, it lacks the substantive power to enforce a good decision. Kathy doesn’t mention Brown v. Board of Education, the landmark 1954 case that struck down segregation (upheld by another Court decision, Plessy v. Ferguson). As Gerald Rosenberg outlines in his book, The Hollow Hope? Can Courts Bring About Social Change?, the Court’s power to enact social change is very limited.  

We both seem to agree that the Court and courts can have some role in striking down popularly enacted legislation. The question is what do the judges understand themselves to be doing when they review ordinary legislation. On whose authority do they overturn the popularly enacted laws of state legislatures and Congress? Many people, conservative and progressive, seem to think that the judges should look at the policy or law in question and determine, based on their own sense of what justice requires, whether the law is constitutional or should be struck down.  

I don’t think of it this way. When courts intervene they (should) act on behalf of the extraordinary politics that have already been enacted and which supersede the ordinary politics that have resulted in an unconstitutional and possibly unjust situation. The Court should be acting on what the people have already established as constitutional.

Should the Court have told the Lovings to wait until the American people came around in Loving v. Virginia? Should the Court have told women in Idaho to wait in Reed v. Reed?

No. The Court did not need to tell people to wait around for some future moment but instead declared what We the People had already spoken in the 14th Amendment, and that a straightforward application of the democratically enacted principles in that super-legislation trumps the ordinary legislation that had denied Americans their rights. The Court did not rely on the individual and personal views of its nine members in either of those cases but did what judges are trained to do: interpret the people’s law and apply it to these particular circumstances. It is also telling that both of these cases, like Brown, were unanimous 9-0 decisions. In short, the Court struck down the decisions of the people of Idaho and Virginia on behalf of the People of the United States by appealing to the 14th Amendment, which in turn was ratified by the legislatures of the states.

 

Why Can’t Obergefell be described similarly?

There are several differences between the result reached in Obergefell and Loving, Reed, Brown, and a host of other cases. First, Obergefell overturned a social institution older than the Constitution itself by a mere 5-4 decision. Moreover, as mentioned in a previous entry, and acknowledged by honest scholars like Kathy who approve the result of the decision, the connection between Justice Kennedy’s opinion and existing constitutional doctrine or text is­­—to try to remain respectful—fanciful. There is no plausible way to understand the Court as speaking on behalf of We the People. There is no doubt that the Court spoke on behalf of some of the people, but in doing so it shifted in its role from interpreting Constitutional law to creating it. It is more accurate to describe the Court as speaking for “we the people as we the court would like them to be.”

Another difference between Obergefell and the other cases is that it is difficult to characterize gays and lesbians as a “discreet and insular” minority. Even if we could speak of a monolithic LGBT community when it comes to this policy issue, many of the cases that rely on that famous footnote number four pertained to underrepresented groups which faced significant obstacles to participating in the ordinary legislative process. Surely this was not the case with gays and lesbians engaging in democratic politics to have their vision of the good life with regard to marriage enacted in law. They had succeeded in many states and failed in others. The campaign had the support of several Fortune 500 companies, the overwhelming majority of cultural elites, and several powerful politicians attempting to catch up with the wave of history. The American people were debating this issue and that healthy debate should have been allowed to continue. Unless . . .

 

Why care about how justice is achieved so long as it is achieved?

The political debate about same-sex marriage should have continued unless, one could argue, the stakes for justice are so high that achieving the desired result is worth breaking the social contract—the Constitution—that not only expresses our aspirations but guides how we settle our differences. To return to my first essay, the Constitution assumes that we the people will differ on fundamental issues about justice and the common good. It is better to agree on how to adjudicate those differences than to stomp out those differences from above. But if an issue is so paramount to our convictions that we cannot compromise in good faith, then we may be tempted to forgo our common bonds and either force the issue or break apart. The latter, of course, is what happened in 1861.

Given the lack of Obergefell’s connection to constitutional text and history, I’m suggesting that one rationale to support a judicial override of the democratically enacted decisions of the people of Michigan and elsewhere is to think that such citizens are not merely mistaken but so egregiously wrong that they no longer should be considered bona fide members of the republic. That this is so can be ascertained by a simple question that I posed in the beginning of this series.

If we conceive of our shared polity as having room for conservatives and progressives, and if  progressive judges should rely on their own sense of justice to keep Americans from having to wait for their due, do conservatives judges have warrant to do the same? If a progressive judge wants to protect the children of the two lesbian plaintiffs in Michigan, can a conservative judge decide differently in representing those children of same-sex couples who do not support same-sex marriage? I don’t think judges drawing on their own political philosophy is a great way to go, for progressives or conservatives, but if we decided as a political community that it should be judicial activism all the way down, then that at least would have the virtue of a straightforward power struggle in which our representatives nominated and confirmed our Platonic guardians for life terms.

That unlikely scenario, however, is not my primary concern. Much more troubling is the prospect of citizens who support traditional positions on marriage and sexuality being deemed the equivalent of racists who supported segregation or sexists who opposed women’s suffrage. Indeed, this is already happening. While Loving v. Virginia was rightly decided, we do well to note how it is being used by some in the current debate. The aftermath of Loving and the Civil Rights Movement generally included the social ostracization of racists and legal and policy marginalization of racist institutions, and rightly so. In a conflux of events involving legislatures, courts, and citizen activism, We the People attempted to further enshrine the ideal of racial equality so that we could better realize that ideal, albeit in fits and starts and imperfectly.

Obviously I do not find the analogy between that movement and the current campaign for same-sex marriage persuasive. But given our warrant for this conversation I will stick with the constitutional questions raised by our divided views on not only the policy question but the procedural ones.

My closing question for our readers of this conversation steals shamelessly from liberal political theorist John Rawls. If you had no idea of the ideological commitments, favored jurisprudence, or political philosophy of any of the Supreme Court justices, what principles would you want them to rely on in making a constitutional decision about an issue you care deeply about? That is, what “rules of the game” would you want to apply to both “liberal” and “conservative” justices? To what would you want them to appeal in making their decision?

My closing questions for my more progressive brothers and sisters are these. Do you see your more traditional Christian neighbors as the contemporary equivalent of George Wallace? Do you think our position is necessarily motivated by irrational animus? Or do you agree with President Obama that we can approach this issue in good faith? Will you defend the rights of Christian churches, colleges, and businesses to operate according to the dictates of their consciences, even if you would decide differently? Can Christians in good faith seek to promote their vision of what marriage is in the public square? Can we still share this public space? Can progressives and conservatives still meaningfully speak of our Constitution?

Some Final Thoughts

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Points that Micah raised in his second essay floated through my mind as I listened to Justice Mary Yu speak at Whitworth last week.  Justice Yu is one of six women on the Washington State Supreme Court. Her mother was a Mexican immigrant who came to this country illegally then naturalized; her father was a Chinese immigrant who also came to this country illegally then became a citizen. Justice Yu is also the first openly gay member of the Court and a member of the Catholic Church. Her undergraduate and graduate degrees in religious studies are from Catholic institutions, and because she wanted to study law within a context of religious values she attended Notre Dame Law School. She is the first Latina, Asian, LGBT member of the Washington State Supreme Court.

Micah wrote in his essay that he was not sure “what specific political wisdom or positions one can expect from listening to various people groups defined by what Kathy refers to as socially constructed identities.” I thought about that statement as I listened to her. My hunch is that while Justice Yu would not be so arrogant as to claim to speak for all Asians, all Latinas, all members of the LGBT community, I think that she would say that others might gain some wisdom, even political wisdom, from listening to her stories about her life and, in particular, her experiences of discrimination based on socially constructed identities. She also would add that her judicial decision-making is constrained by the rules of construction and stare decisis that confine any judge. Micah rightly points out in his essay that somehow I do not embrace the idea of “false consciousness.” That said, to suggest that because no one woman can speak for all women or no black citizen can speak for all black citizens, that no group is monolithic in its views does not mean common experiences cannot form a common narrative. I do not agree with the binary that Micah suggests. What I am suggesting is reflected in this statement by Justice Ruth Bader Ginsburg:

“A system of justice is richer for the diversity of background and experience of its participants. It is the poorer, in terms of evaluating what is at stake and the impact of its judgments, if its members—its lawyers, jurors, and judges—are all cast from the same mold.”  

Micah is absolutely correct to point out the diversity of women’s voices, that no one group can speak for all women. In fact, in my class, Women and Politics, I require students to read, Righting Feminism: Conservative Women & American Politics by Ronnee Schreiber, an in-depth look at two conservative women’s groups, the Independent Women’s Forum and Concerned Women of America. I also have them read Melissa Harris-Perry’s Sister Citizen about the identities and stereotypes of black women in America and the intersectionality of race and gender. No student leaves that class thinking all women think alike. I know all women do not speak with one voice. That said, historically, unequal pay for the same work, limits on employment opportunities, sexual violence, and the effects of being the only sex that can bear children have provided women some common, sadly hurtful, experiences. Ironically, the fact that women do not speak with one voice suggests that more efforts should be made to have the federal judiciary have more women on it.

Micah and I differ regarding our views on representation and the judiciary. Micah writes, “The Supreme Court was not designed to represent the people of the country.”  And he rightly points out the elitism of the educational backgrounds and social backgrounds of justices, although I would suggest that Justice Sotomayor differs from the other justices in terms of wealth. I am not at all asserting that a justice represents a constituency in the same way elected representatives do. What I am suggesting is that it matters that candidate Ronald Reagan promised that he would appoint a woman to the Court and that President Reagan fulfilled that promised when he appointed Sandra Day O’Connor to the Court. She would have been the first to say she was not representing women qua women, but did it not matter that she was appointed? Representation can mean and signal many things, and one of the things it can signal is now a woman could aspire to have a seat at the conference table and sit on the bench of the most august court in this country. Did it matter that someone who had gone through pregnancy and borne children now was present at discussions about abortion cases? I would suggest yes. And studies of O’Connor’s decision-making suggest that her experiences as a woman affected her outlook. Justice O’Connor herself noted the importance of a diversity of backgrounds on the Court when she paid tribute in 1991 to Justice Thurgood Marshall, the first Black justice, upon his retirement. She wrote,

“Although all of us come to the Court with our own personal histories and experiences, Justice Marshall brought a special perspective. His was the eye of a lawyer who saw the deepest wounds in the social fabric and used law to help heal them. His was the ear of a counselor who understood the vulnerabilities of the accused and the established safeguards for their protection. His was the mouth of a man who knew the anguish of the silenced and gave them a voice. At oral arguments and conference meetings, in opinions and dissents, Justice Marshall imparted not only his legal acumen but also his life experiences, constantly pushing and prodding us to respond not only to the persuasiveness of legal argument but also to the power of moral truth.”

Studies of Justice Clarence Thomas’s jurisprudence suggest that his racial experience informs his perspective, again a perspective that is important to have on the Court.

Because the Court is unelected and the justices possess life tenure the Court’s legitimacy in a constitutional democracy is sometimes contested.  I would suggest that the legitimacy of the Court is enhanced when it the Court looks more like the population. I am not suggesting that the Court needs to exactly mirror the population. Former Justice Mary Jeanne Coyne who sat on the Minnesota Supreme Court asserted, “[A] wise old man and wise old woman reach the same conclusion.”  But Justice Ruth Bader Ginsburg, while agreeing with Justice Coyne, did add: “ [I]t is also true that women, like persons of different racial groups and ethnic origins, contribute to the United States judiciary what . . . [is] fittingly called ‘a distinctive medley of views influenced by differences in biology, cultural impact, and life experience.”

I recognize that Brown v. Board of Education was decided with no Black member on the Court; I also recognize that the Obergefell decision was decided with no openly gay member on the Court. That said, there is something to be said for symbolic representation when a group in our society can look at the Court and say there is someone who is like me, like me in an identity that has historically been stigmatized and marginalized.

After listening to Justice Mary Yu tell her life story, I thought about symbolic representation. The room was packed with students and after she finished many students stood in line for the chance to talk with her and have their picture taken with her. Some were white students, but many were students of color. Many students were female. Some students who had their picture taken with her are gay. As I observed their interaction with her, there was no doubt in my mind that her identities mattered for them, that someone had reached this position of influence who had experienced some of the same things they have experienced. One faculty colleague who was there commented on Justice Yu’s “Christ-like” nature as she talked about her commitments and faith.

I suspect that this conversation Micah and I have had has taken a turn that perhaps Harold was not expecting. Obviously Micah and I write out of our different disciplinary specialties. I have appreciated Micah’s reminders about the role of courts and also the dangers in assuming that groups based on certain identities ever speak with one voice and for his pointing out the ways in which we agree. So, thank you, Micah, for engaging in this conversation.  

A Perspective on Perspectives

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It was wonderful to read Kathy’s opening essay for our conversation, for I think we hold some key commitments in common, as well as some applications of those commitments as to how we should think as Christians about politics, the common good, and the Constitution. We have some differences as well, to be sure, but I think we will be able to explore our common ground and any differences in helpful ways. In the remarks that follow I will express my agreement with many of Kathy’s observations, articulate a potential area of disagreement, and raise some questions about judges and critical theory that may further illumine our different approaches to our topic.

I want to first register how pleased I was to find that in many ways each of our essays presented a similar conclusion, albeit argued in rather different ways. Without communicating beforehand, we each proceeded to cast strong doubts on an understanding of the Supreme Court as the most important and near-infallible authority for the meaning of justice and the American political tradition. Neither of us believe that Supreme Court jurisprudence, despite the robes and the Greek columns, delivers for us unalloyed wisdom from on high that we as good citizens must accept without question.

I found Kathy’s call for a “double consciousness” regarding the Constitution to be persuasive, and her account of how Christian faith informs a hermeneutic of suspicion moving, even if I may not be suspicious enough for her liking. It seems to me that Kathy is rightly motivated by a concern for how law affects actual people, and her exemplars are those who cry out for justice for the least of these. Moreover, we do well to remember the pervasiveness of sin and its seeping into every human institution no matter how lofty or respected. Kathy’s piece reminded me that the law was made for men and women, not men and women for the law, and without love, understood as a conscious commitment to the good of another, duly enacted laws, constitutional doctrines, and well-reasoned opinions are only noisy gongs and clashing symbols.  

Kathy’s treatment of the law in Scripture also points to an area of agreement. The application of law gives life, and it can take life. Psalm 19 describes law as God’s blessing to His people. But at the same time the law was powerless to save (Romans 8:3), and in fact condemns us (2 Corinthians 3). On a different level, the Constitution as a human political document gives us both evil and good. The Constitution that gave us the fugitive slave clause also gave us what Martin Luther King called the “great wells of democracy which were dug deep by the founding fathers . . ..” We recognize the reality of the Fall and so we should be grateful for what law can do to provide for the common good. We also know that men and women are created in God’s image, and we lament the failure of the law to cultivate human flourishing. We cry out when the law doesn’t merely fail to promote the good, but actively afflicts image-bearers with injustice and cruelty. Our attitude toward law reflects our life together in this in-between-but-not-yet season of God’s providence.

I can also agree in part and disagree in part with Kathy’s invocation of critical legal theory, feminist legal theory, and critical race theory. It is certainly the case that no one of us enjoys a view from nowhere, completely objective and untouched by our identities or perspectives. We cannot hide behind a veil of ignorance and claim an unbiased view of the platonic form of justice. We are, all of us, affected by the Fall. We are affected by our place in society, our family background, our gender, age, faith commitments, history, and the list goes on. These critical perspectives from the academy can disabuse any of us who still thinks that we can attain a version of Cartesian certainty about the law or any other subject.

What I find puzzling about these critical theories is trying to determine what help they can be in doing more than tempering overly optimistic rationalist accounts of law. I have no problem accepting that every author has interests and may be, consciously or not, exercising and pursuing her power in writing. This is true whether the authors are framers of a Constitution, Supreme Court justices interpreting that Constitution, critical legal theorists, or Kathy and myself. The observation about the ubiquitous presence of power dynamics strikes me as fine as far as it goes. But such dynamics have to be able to co-exist with genuine insights into justice and truth, or the critical legal theorists have a self-referential puzzle to tease out, namely how their own power interests do not vitiate their claims to accurately describe how legal discourse operates for everyone else. If they expect me to assess their claims to accurately describe the legal landscape despite their own wills to power, then it seems that others can rightly expect the same cautious reception.   

My area of disagreement, or perhaps puzzlement, then, with Kathy’s affinity with these critical theories lies in how these approaches would inform judicial and political decisions about the common good. If we were to have another Constitutional Convention, of course we would want it to be much more representative than the one held in Philadelphia in 1787. I couldn’t agree more that a new Constitutional Convention would be terribly unjust if it was as restricted as the previous one, and did not include those whose voices have historically not been empowered.

What I’m not sure about is what we think would emerge from these groups, as groups. That is, I’m not sure what it means to say there’s a meaningful “women’s” perspective on politics. Even as a man I think I can confidently predict the political leanings of most feminist legal theorists, but I’m dubious that their privileged perspective would line up with American women generally. In the case of abortion, listening to the perspectives of women would mean hearing the voices of Hilary Clinton and Carly Fiorina, Nancy Pelosi and Mia Love.

I think we should listen to women’s voices, and women should be included in the “we” that is doing the listening. But it is obvious that women are divided about many political issues. Whatever women bring to a particular issue as women seems to be as susceptible to the same disagreements about justice and the common good that divide men. Thus while I firmly agree that the exclusion of women from voting and office-holding in the past was unjust, and women’s voices must be heard now, I don’t know what it would mean for a judge to consider women’s voices as such. One would need to fall back on discerning whether the reasons offered for this or that position truly advanced justice, and only secondarily on the gendered nature of the persons offering those reasons falling on opposite sides of an issue.

Perhaps a better case could be made for a racial perspective on political issues, given the overwhelming support that African Americans have given in recent years to the Democratic party. Yet this seems to run into difficulties as well. If what counts is a common history of belonging to an oppressed group, then one is faced with either distinguishing between the incommensurable political views of President Obama and Justice Thomas, or determining that one of those two African-American men cannot genuinely speak from the African-American experience. That is not a savory task. Or to consider this difficulty as applied to a particular issue, how does one determine the African-American perspective on same-sex marriage when opposition to same-sex marriage has risen in the last year to over two-thirds of the African-American community? Are the 33% of African-Americans who favor same-sex marriage mistaken about the black view? It’s also unclear how a judge would balance between the views of two different historically unrepresented people groups even if one could somehow determine what counted as the representative view.

One common way that some critical theorists account for the diversity of views within a given people group is to attribute deviance from what is considered the genuine position to a phenomenon called false consciousness. If the genuine feminist should support abortion rights, then the self-identified pro-life woman has been hoodwinked by powerful forces whose interests she should oppose. If the genuine African-American position favors an expansive role for the federal government, then African-Americans who favor limited government have unconsciously adopted the mindset of those who do not have their best interests at heart. I want to be clear that I am not saying that Kathy would embrace this practice of attributing intellectual diversity to false consciousness. Doing so makes conversation almost impossible because one doesn’t argue about why a position is mistaken, but rather about the psychological or ideological motives behind the person’s taking the position in the first place. Yet barring a resort to false consciousness, I’m not sure what specific political wisdom or positions one can expect from listening to various people groups defined by what Kathy refers to as socially constructed identities.

What I’m getting at here is the distinction between calling for the inclusion of all sorts of different voices in our politics, and thinking about who can legitimately speak on behalf of those different voices. I could not agree more that we should hear from everyone, and particularly those who have not been the “winners” in our society. I am doubtful, however, that members of the judiciary have the ability or the warrant to do so. And this is the link to my argument in my opening piece.

The Supreme Court was not designed to represent the people of the country, and given the difficulties I’ve mentioned, it’s hard to see how it could. As Justice Scalia pointed out in his Obergefell dissent, the nine current justices all attended Yale or Harvard for law school, eight of the nine are from the coasts, four are from New York City, none are from the Southwest, and none are Protestants. Moreover, given the pervasive nature of sin, even if we could conceive of the most representative composition possible for the Supreme Court, and even the lower courts, they would continue to get things wrong time and time again.

If judges are not equipped by their training or office to speak on behalf of the various constituencies in the country, who is? As I suggested before, the answer is public servants who must compete in order to win the votes of citizens so they can serve in the legislature. This is not to say that legislatures always get things right. Far from it. But there is no human institution free of that liability. And unlike judges, the very purpose of a representative is to represent her constituents, who can throw her out if they judge that she has not taken their concerns seriously enough.

I agree with Kathy that we cannot trust judges to arrive at completely unbiased and objectively fair conclusions in their deliberations about constitutional questions and controversial policy matters. I don’t pretend that legislators always get it right, nor that our Constitution is a flawless document. It is, however, the system that we have, and a system has included within it a “promissory note” that has expanded opportunities for a flourishing life to more and more people. That system puts the power to make decisions about the issues that define us into the hands of those most immediately responsible to the people. 

Response to Micah Watson’s “The Constitution and Agreeing on How to Resolve Our Disagreements”

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As someone who has taught courses related to American governmental institutions, including constitution law, for more than years than I like to think about, I appreciated very much Micah’s overview of the functions of a constitution. In fact, I may ask his permission to use a section of his essay in a future class. In my presidency class the other day I posed the question, “What is constitutionalism?” and was taken aback by the few who had an answer readily at hand. Obviously, I need to say more about constitutionalism in lower level courses, and Micah’s overview is invaluable. As Micah points out, a constitution expresses aspirations of a people, allocates and limits powers, and provides structure through which a polity can make more laws.And I could not help but think that Dr. Martin Luther King, Jr. would have said a hearty amen to Micah’s statement: “To the extent that the ideals are misguided and even antithetical to human flourishing, Christians should not be informed by but attempt to transform (witness to, change) a constitutional system through both ordinary and extraordinary politics.”

Before turning to questions I have about Micah’s essay let me state my views on the Obergefell decision. Given my previous essay, it will not come as a surprise that I rejoiced in the Court’s decision. In fact, I was in Washington, DC, outside the Supreme Court, when the decision was announced and celebrated with the hundreds of people there. I do not agree with the traditionalist view of marriage and think that there is room within the Christian church for both gay, lesbian, and straight married couples. Although I celebrated the Obergefell outcome, I do think that the majority’s opinion could have had a different analysis that would have placed the decision on stronger grounds, but that question is for the next participants in this conversation to discuss.

While I wholeheartedly agree with Micah’s comment about a Christian’s obligation to try to effect change when the constitutional system opposes “human flourishing,” I did wonder what Dr. King would have thought about Micah’s views on the Tenth Amendment and reliance on the political process, namely his reliance on state legislatures “to come to principled compromises.” At different times in American history certain groups have not had access to the process.  While the Tenth Amendment reserved to the states those powers not delegated to the federal government, the Fourteenth Amendment, when passed, was specifically aimed at the actions of states. It seems to me that in order to understand how the Constitution might inform a Christian’s views on political issues that the Fourteenth Amendment should be part of the conversation, a place where the Court has pegged its role to protect minority rights from being violated by legislative majorities. It is the role of the Fourteenth Amendment in the constitutional system and the role of the Court in that system on which I would like to reflect.

In this discussion, I cannot help but think of Mildred and Richard Loving whose case regarding interracial marriage reached the U. S. Supreme Court in 1967. The Lovings were an interracial, married couple (she was of African-American and Native American descent; he was white). While in bed, in the early morning, they were arrested in Virginia for violating the state law prohibiting interracial marriage. They were convicted, sentenced to prison for one year; however, the court stated that if they left Virginia for twenty-five years they would not have to go to jail. At the trial, the judge noted that Virginia’s anti-miscegenation law rested on the fact that God had placed “the races . . . on separate continents,” a fact that reflected that God “did not intend for the races to mix.”  With the help of the ACLU, the Lovings sued the state of Virginia, claiming the law violated the Fourteenth Amendment. In its decision, the U. S. Supreme Court noted that the state court had pointed out that the regulation of marriage should be left to the states under the Tenth Amendment. But the Supreme Court ruled that states did not have complete power over the regulation of marriage and that state anti-miscegenation laws violated the equal protection clause of the Fourteenth Amendment. This despite the fact that the state police power gives states power over marriage law. At the time, polls indicated that 70 percent of the American population was opposed to interracial marriage. Should the Court have told the Lovings, “You need to wait until the American people come around”?

When the Fourteenth Amendment was passed in 1868 the contours of federalism changed forever; now the Tenth Amendment would have to be looked at in conjunction with the Fourteenth. States were to treat freed slaves equally and state laws that appeared to infringe the rights of freed slaves were now subject to review by federal courts. What is important is that the language of the Fourteenth Amendment is general; it speaks of citizens and their rights to due process and equal protection under the law. Section one states:

 All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State [emphasis added] shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State [emphasis added]deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The federal government could now reach state action which traditionally had been out of bounds. The coverage of the Fourteenth Amendment expanded under the doctrine of selective incorporation. The Court, through the due process clause of the Fourteenth Amendment, over the years applied the majority of rights in the Bill of Rights to the states under the concept of “ordered liberty.” If legislative majorities in the South were in fact protecting the rights of freed slaves then the Fourteenth would not have been necessary; they were not. The political process did not protect social outcasts; now federal courts could be places where oppressed and marginalized voices could be heard. I agree with Micah that federal judges do not have a corner on discerning what a society should look like. That said, I am not as optimistic as he is about elective bodies. There is indeed something called the “tyranny of the majority.” Segregation laws demonstrated that fact.

The Fourteenth Amendment has been a tremendously important source for my rights as a woman to be secure against the action of states. Should women have waited for state legislatures to come around to a more progressive view regarding the role of women in society?  In 1971, in Reed v. Reed, the Supreme Court, for the first time, used the equal protection clause of the Fourteenth Amendment to strike down an Idaho law that automatically named men to be appointed executors of wills. That law was based on traditional views of women’s roles, expressed through a male-majority state legislature. It was a duly enacted law, but was it fair? Should the women of Idaho have just waited for views to change? How long?

This brings me to the most famous footnote in constitutional law—footnote four in Justice Harlan Stone’s opinion in U. S. v Carolene Products (1938). The decision in that case upholding a federal law regulating the milk industry during the New Deal has proven to be less important over time than footnote four. While the actual outcome reflected judicial deference to Congress in the area of economic regulation, Justice Harlan Stone, author of the opinion, noted in footnote four that judicial restraint in other types of cases might not be appropriate. The Court should scrutinize more carefully laws that “restrict those political processes which can ordinarily be expected to bring about repeal of undesirable legislation” and laws “directed at particular religious, or national, or racial minorities . . . against discrete and insular minorities” that are victims of “prejudice.” The impact of the Carolene footnote can be seen in Baker v. Carr (1962) in which the Court said that legislative redistricting was subject to judicial review and in Reynolds v. Sims where the Court said the equal protection clause of the Fourteenth Amendment required that the population of state legislative districts be equal, thereby securing the one person, one vote rule. Yes, federal judges are unelected, but a constitutional democracy is not simply about resolving disputes through voting in legislatures. There are fundamental rights which should be protected from being limited by legislative majorities.

The Obergefell dissenters charged the majority with judicial activism, which is one of Micah’s major criticisms of the opinion. As I have mentioned, I think the majority opinion could have been stronger, deflecting some of the criticism, particularly the judicial activism critique. However, what is ironic is that the Obergefell dissenters themselves engaged in judicial activism in gutting sections of the Voting Rights Act in Shelby County v. Holder (2013) and in striking down sections of the Bipartisan Campaign Reform Act in Citizens United v. F.E.C (2010). Now, with states passing voter id laws that would have been automatically reviewed under the VRA, certain segments of the population will find it more difficult to access the political process. In a post-Citizens United political regime, those with more money have more access to the political process. For these reasons, I am not as optimistic about the political process protecting rights of marginalized groups.

Micah mentioned that the Obergefell decision overturned duly enacted laws in several states, among them Michigan. The case from Michigan, consolidated in Obergefell, involved two lesbians, each of whom on her own had adopted special needs children, but as a same-sex couple they could not, under Michigan law, jointly adopt their children nor could they marry. This situation raises several questions: Should their children not receive all the benefits that children in straight marriages do? What about equal protection claims for their children under the Fourteenth Amendment? Should children be second class citizens whose parents are the same-sex? Permitting these children to be second class citizens does not contribute to human flourishing.

In the end, Micah and I both agree that government should be about creating conditions where humans can flourish. And our view stems from our faith commitments. Obviously, we perceive marriage and role of the Court in protecting stigmatized groups differently. I still think about Mildred and Richard Loving and how radical a change it was for many in this country to think about people of different races being married. In 2007, on the fortieth anniversary of the Loving decision, Mildred Loving issued this statement about same-sex marriage:  

My generation was bitterly divided over something that should have been so clear and right. The majority believed that what the judge said, that it was God’s plan to keep people apart, and that government should discriminate against people in love. But I have lived long enough now to see big changes. The older generation’s fears and prejudices have given way, and today’s young people realize that if someone loves someone they have a right to marry.

Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don’t think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the “wrong kind of person” for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people’s religious beliefs over others. Especially if it denies people’s civil rights.

I am still not a political person, but I am proud that Richard’s and my name is on a court case that can help reinforce the love, the commitment, the fairness, and the family that so many people, black or white, young or old, gay or straight seek in life. I support the freedom to marry for all. That’s what Loving, and loving, are all about.

To conclude, while it is always wise to think about the role of courts and judges in a constitutional democracy, it is just as important to think about the limits of the political process to protect the rights of those who historically have not been the ‘winners’ in that arena.

Christians and the Limits of Law

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At the outset let me state what might be called my first principles. As a Christian and as a citizen of the United States, I view the Constitution both as a constitutive document for this country and also a ‘living’ document. It is, like the Bible, a text that requires interpretation; it is not self-interpreting. Because I have taught constitutional law I cannot help but then think of the Constitution as connected to judges, ultimately to the Supreme Court justices. I place myself within the Reformed tradition, and so view government as an institution that can be used to achieve justice.

While today I readily affirm the Constitution’s importance in creating our governmental structure as well as setting out aspirations, I grew up in a faith tradition which did not affirm the Constitution because the document omitted any reference to God’s sovereignty over all of life. Some readers will be familiar with the Christian Amendment Movement and the National Reform Association. The amendment would have modified the preamble to read: “WE, THE PEOPLE OF THE UNITED STATES, [recognizing the being and attributes of Almighty God, the Divine Authority of the Holy Scriptures, the law of God as the paramount rule, and Jesus, the Messiah, the Saviour and Lord of all] in order to form a more perfect union,  . . . .” It is always an interesting moment in my classes when I say that I did not grow up with the idea that the United States was or is a Christian nation. In fact, the opposite. The nation was deficient because as a nation it did not assert explicit loyalty to the Christian God. For many years, until the 1960s, my denomination did not support voting by its members, not out of Anabaptist convictions, but due to this omission in the Constitution. The denomination changed its view of voting in the 1960s. Part of my own migration out of that view and into a different was observing my father, in the Cabinet Room, being sworn in as chair of President Gerald Ford’s Consumer Advisory. He had to affirm that he would uphold the Constitution which he readily did.

I do not think of the Constitution as a free-standing document; it is grounded in the details of people’s lives as fleshed out in Supreme Court decisions. So when I think about the Constitution influencing how Christians thinks about public policy, I begin with the fact that the document ‘lives’ in the circumstances of people’s lives. Individuals and organizations, as well as other groups of people, come to the Court seeking a remedy for a perceived injustice.

 Often the real people that look to the Constitution and other laws for redress have been stigmatized by society because of custom, tradition, religion, and law. Over the years I’ve become more and more convinced that when we talk about the Constitution we must talk about people, both those who wrote it, those who interpret it and then those who seek redress through it.

In this answer, I would like to focus on the Constitution as a legal text and how thinking about it from certain perspectives might better inform our thinking on public policy issues. As a Christian, I am indebted to schools of jurisprudential thought which remind me that the Constitution, along with statutes and common law traditions, was written and interpreted from certain perspectives, and is therefore a flawed document. I am indebted to critical legal studies for reminding me that in a flawed legal world, legal texts are interpreted in an ideological manner, that the meaning is often more indeterminate than some would admit, and that meaning is contingent. This is not to suggest that we cannot approach better interpretations, more just interpretations; it is only to acknowledge that the framers were not neutral observers and neither are contemporary judges. It seems to me that some Christians too easily adopt the dominant model of judicial decision-making asserted by liberal legal theory. This model views legal decision-making as primarily a deductive process, resembling a syllogism. It suggests that a judge need only discover the major premise which is the pertinent rule of law, review the facts of the case that constitute the minor premise, and apply the rule to the facts to produce decisions which are neutral and objective. According to critical legal theorists, law is not neutral but a way of keeping vested power intact. It is indeed Christian, in my view, to suggest that law and adjudication can never be completely neutral. 

So in thinking about the Constitution, one needs to acknowledge that it is stand-point dependent. That is, to ignore the race, class, and gender of the framers is a serious error if we want to understand the reasons for their writing what they did. I am reminded of Frederick Douglass’s view of the U. S. Constitution. In 1849, he posed these questions: “The Constitution of the United States. What is it? Who made it? For whom and for what was it made? Is it from heaven or from men? How, and in what light are we understand it?” Douglass then goes on to note the sections of the Constitution which have to do with slavery and asserts that the document “was made in view of the existence of slavery, and in a manner well calculated to aid and strengthen that heaven-daring crime.” Critical legal theory would not appear until one hundred and twenty-eight years later, but Douglass would certainly recognize kindred spirits.

As a woman, I am well aware that the framers were men and that women were not considered part of the body politic. Suffragist Elizabeth Cady Stanton noted, “Thus far women have been the mere echoes of men. Our laws and constitutions, our creeds and codes, and the customs of social life are all of masculine origin.” What then must happen is for women to be placed at the center and their lived experiences taken into account, according to feminist theorists.

Critical race theory places race at the center of the analysis of law and the legal system. Just as there are gendered narratives within the Constitution so are there racialized narratives. Because race is a significant category of analysis, critical race theorists challenge the race-neutral idea of a colorblind Constitution, a tenet of liberal legalism. To seek a colorblind Constitution would be to ignore how racism is entrenched in institutions. Law professor Charles Lawrence argues that the notion of a color-blind Constitution is attractive and would be in fact a worthy goal in a world where individuals were valued as individuals. But the United States is not such a world.

These legal theories which highlight that laws, including the Constitution, reflect specific viewpoints, have been criticized for rejecting objectivity and relying instead on personal stories as the central narrative. But real lives matter.

These three legal theories—critical legal theory, feminist legal theory, and critical race theory—ask the same question that lay theologian and lawyer William Stringfellow (who also happened to be gay) did in the 1970s, namely, How does law [including the Constitution and Supreme Court decisions] victimize people? His question was rooted in his unswerving belief in the pervasiveness of the Fall.

Reinhold Niebuhr also was characterized by an “epistemological pessimism” because of his biblically grounded view of human nature.  John P. Diggins has written that with Niebuhr there is “finitude, contingency, opacity and irony.” The same can be said of the three legal theories, albeit they do not begin with a biblically grounded anthropology.

What I have been attempting to do is to suggest that as a Christian one should recognize that the Constitution and Court decisions are grounded in certain narratives, such as racialized narratives. There is no innocent and completely objective interpreter of law. To say this is not antithetical to the biblical tradition but flows from it, both from the Fall and the Incarnation. Legal knowledge is but a subset of knowledge. And one can view the Incarnation as demonstration that knowledge is dependent on creation and thus is standpoint dependent. Former English professor at Seattle Pacific University Joyce Erickson has written,

 The Incarnation as a fact of God’s interaction with the creation underscores the interdependence of human creatures and creation, an interdependence . . . evident in the way we know [sic] the creation. Surely this also ‘blesses’ the fact of ‘standpoint dependence’ as a condition of human knowledge. And the necessary interdependence of creation requires a variety of ‘standpoints,’ of experiences, for the fullest knowledge.

Knowledge is embodied, which is both glorious and problematic at the same time. The framers were rooted in 18th century America, with its time-bound customs and traditions and understandings. I honor the Constitution but must, as a Christian, read it with a hermeneutic of suspicion.

I would suggest that the Incarnation compels the Christian to place ‘the least of these’ at the center of analysis, those who have been stigmatized. In their respective interrogations of liberal legalism, critical legal studies, feminist jurisprudence, and critical race theory focus on categories omitted on purpose from traditional analysis, namely class, gender and race. Stringfellow wrote, “The presence of the Christian among the outcasts is the way in which the Christian represents concretely the ubiquity and universality of the intercession of Christ for all.” Likewise, a Christian when considering the Constitution and the decisions interpreting it must include ‘outcast’ categories in her analysis. To do so is truly to ‘see all things new.’ 

Law has occupied a hallowed position in the Judaic and Christian traditions. In the American tradition, the Constitution is one of our ‘sacred’ texts.  But Jesus recognized that law oppresses when he said, “Woe also to you lawyers! For you load people with burdens hard to bear, and you yourselves do not lift a finger to ease them” (Luke 11:46 NSRV). In his unique way, Jesus demythologized a human institution. In Jewish society, a legal rule did not permit shepherds and women to testify in court—they could not ‘bear witness’. And yet it was to shepherds that angels brought word of Jesus’s birth and it was to women that angels announced Jesus was risen. The oppressive nature of the rule was unmasked.

In thinking about a Christian’s relationship to the Constitution, I think about law professor Mari Matsuda’s suggestion that people of color have a “double consciousness” about law, a consciousness which combines “deep criticism of law with an aspirational vision of law.” She cites Frederick Douglass as an example of this “double consciousness” choosing as he did to believe in the Constitution while rejecting a racist Constitution.

The Fall and the Incarnation create a “double consciousness” in the Christian who wishes to understand law, and in particular the Constitution and Court decisions. The Fall should prompt a “deep criticism” of law. Law can be, after all, an instrument of death. It put the Word to death. But it should not be rejected as completely irrational or completely indeterminate. It simply means that the law, including the Constitution, is one of the institutions upon which we rely for so much, is more deeply flawed than we may care to imagine. Also, if one is a gay Christian, a Christian of color, a Christian who is challenged because of a mental illness or physical disability, or any socially constructed identity which has been stigmatized in our society and has been a basis of social and legal discrimination then law, the Constitution and Court decisions are going to be even more skeptically scrutinized and should be. And if one is Native American, one’s relationship to the U. S. Constitution is even more complicated because tribes have an extraconstitutional relationship to the U. S. And there is and ought to be a strong hermeneutic of suspicion.  

But despite its flaws, law is also an instrument of life. Law professor and Presbyterian minister Milner Ball has pointed out that while the law put the Word to death, in the gospel depiction of Jesus’s trial, the gospel never exonerates nor does it expressly condemn the law or its representatives. The Incarnation provides a basis for legal reform. I would suggest that a Christian can have a “transfigurative” vision of the Constitution, that “we, the people” becomes a place where all of us, in our very different, embodied lives have a place.

My focus in this initial piece for Respectful Conversations is to suggest various ways a Christian might look at the Constitution. Ironically, the skepticism about the Constitution in which I was raised continues but for different reasons. The Constitution is a necessary artifice which should never be an idol. From my perspective, critical legal theory, feminist legal theory, and critical race theory remind me as a Christian that law is no god. And, given the particular focus of this series, LBGTQ Christians realize that law is no god as well.

Drawing upon liberation theology and the work of Presbyterian theologian Walter Brueggemann, Thomas Shaffer, a Christian and emeritus professor of law at Notre Dame, suggests that the Christian faith subverts the legal order. The Psalms in particular depict a society in which the dominant class prevails, but God hears the voice of those who have been forgotten. The psalmist writes, “O Lord, you will hear the desire of the meek; you will strengthen their heart, you will incline your ear to do justice for the orphan and the oppressed, so that those from earth may strike terror no more” (Ps. 10:17-18 NSRV).  The rule of law, including the U. S. Constitution and Court decisions, can be the ideology of the oppressor.

I return to Frederick Douglass. He wrote in 1845, “I love the pure, peaceable, and impartial Christianity of Christ: I therefore hate the corrupt, slaveholding, women-whipping, cradle-plundering, partial and hypocritical Christianity of this land.” Some might say we have come a long way in race relations since Frederick Douglass wrote. But one need only think about the Supreme Court’s decision gutting the  Voting Rights Act in Shelby County v Holder (2013), the BlackLivesMatter movement or read Ta-Nehisi Coates’s Between the World and Me to know the law is still a long ways away from racial justice. Those of us who believe in a transcendent universe, rooted in biblical themes of the Fall and Incarnation, must bring a “double consciousness” to the Constitution, to the Court’s decisions and to public policies. Those who have not experienced oppression based on certain identities need to hear the stories of those who have. Out of a deep criticism based on these themes, we must say “yes” and “no” to the Constitution and always examining whether through interpretation of this ‘living’ document justice is diminished or advanced.  

The Constitution and Agreeing on How to Resolve our Disagreements

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Introduction

There are so many different angles and questions wrapped up in this topic’s leading question that it requires some disentangling before we can get into substantive claims about how to answer the question. We have no shortage of disagreement about how Christians should think about public policy, let alone how the Constitution should inform this thinking. Christians have a two-thousand year history of disagreement about how to interpret and apply the Bible, and Americans have been wrestling with how to interpret the Constitution for 228 years. Moreover, much depends on how we understand the purposes and functions of a constitution in general, and then the specific content of the U.S. Constitution in particular. There are a lot of moving parts. Unlike some of the other topics under consideration in this series of Respectful Conversations, it’s not obvious at first what a traditional and a progressive approach will have in common and on what points they will differ.  I will proceed by laying out a series of claims—some descriptive and some normative—that will move from the general and hopefully less controversial to the more specific and probably contested. I’m grateful to have this opportunity to think together with Kathy Lee about these matters.

One way of making our topic manageable is to clarify what I won’t be doing. I won’t be repeating the case for what I take to be the most faithful Christian approach to the question of sexual identity and behavior. Insofar as scripture is the most authoritative norm for determining what genuine Christian thinking is, we have already had that discussion in the second conversation. Just to lay my own cards on the table, I think Professor Strauss is right to identify orthodox Christian sexual ethics with chastity in singleness and marriage as a lifelong and exclusive union between one man and one woman. Yet biblical understandings do not necessarily yield straightforward conclusions as to what a Christian should advocate in a pluralistic public square with regard to public policy. Thus we have an entire conversation dedicated to that question next month, and so I also won’t be making the public policy case for traditional or conjugal marriage, though I do have views on the matter. 

We can think of the biblical discussion as a way of articulating certain grounding truths about human nature and its purposes with regard to sexuality. We might think of this as a discussion about human ends, the fulfillment of which contributes to God’s vision of human flourishing (whether in marriage or in singleness). The policy discussion, on the other hand, is mainly about means: how best to promote and protect that vision in the many tangible ways that laws and policies touch on and regulate marriage, sex, and family life. What a constitutional discussion does is fill in the gap between the normative ends or purposes and the public policy means. For policy, law, and life together do not occur in a vacuum. They occur in a political community, and the operating blueprint of any political community is its constitution.

 

What does a Constitution do?

Constitutions do a number of things, but for our conversation I want to highlight three functions.  First, constitutions express the vision of what a political community aspires to, and reveals an underlying view of human nature. Whether by stating such aspirations overtly, or reflecting political principles procedurally, constitutions by their nature affirm some ways of living together and close off or deemphasize others. They are normative documents, and those normative commitments can be expressed in different ways.

Second, constitutions allocate power by authorizing various political entities at varying levels to exercise that power. Of course, constitutions also limit power. They codify at the highest political level what government office or structure decides what, how that office is filled, and how the relationships between different political actors are defined.

Finally, and somewhat paradoxically, constitutions are comprised of laws that create the mechanisms whereby we create more laws. Many constitutions delineate the means by which we work out regular politics from what we might think of as heightened or super politics. The former would be rules about how everyday legislation is made into law, how elections are conducted, or court jurisdictions drawn; the latter concerns core principles and even changing the constitution itself. Constitutions thus provide frameworks for doing the everyday business of politics, and the extraordinary business of Politics. The former involves working out the details of our political values and commitments. The latter involves substantively changing a commitment or taking radical measures to protect a threatened value or principle.

I want to make two observations at this point. First, given this basic description of what constitutions do, we can see how it is a challenge to address how any given constitution should inform Christian thinking. The short answer is “it depends.” It depends on what our Christian faith tells us about the purposes of government, and how well those purposes match up with the normative aspirations of any given document. It also depends on how well the practical mechanisms of the constitution achieve or make possible the achievement of those political ends. Evaluating the compatibility of ends is a matter of theological and biblical ethics, and political philosophy. Evaluating the efficiency of means is a prudential task for political science (not, however, just for political scientists!). To the extent that a constitution facilitates ends that are consistent with what our faith tells us about politics, and to the extent that the framework achieves some level of success in a political process that promotes justice and the common good, Christians should support and work within the system to love their neighbors through the political process. To the extent that the ideals are misguided and even antithetical to human flourishing, Christians should not be informed by but attempt to transform (witness to, change) a constitutional system through both ordinary and extraordinary politics.

The second observation is this. Constitutions are one of the key components of a political tradition. Traditions, as political philosopher Alasdair MacIntyre tells us, consist of some convictions that are not up for grabs, and other beliefs that can and should be debated. A constitution, then, enshrines some principles as constituent of what makes the tradition what it is (to change such convictions would be extraordinary politics, even a version of regime change), and also regulates how we disagree about regular political matters. Because politics means robust disagreement about the ends and means of our vision for the common good and human flourishing, constitutions provide the rules for what counts as resolving those disagreements, and even rules for how to change those rules. One necessary (but not sufficient) condition for a healthy political order is widespread acceptance of the legitimacy of the political process for determining winners and losers in debates about public policy. A constitution includes the ways in which we agree to resolve our disagreements. When faith in the legitimacy of that process dwindles, the bonds that make a common civic space weaken, cynicism grows, and politics becomes in reality what many already fear it is by definition: an intrinsically ruthless contest of power versus power, a real life enactment of Kevin Spacey’s nihilistic House of Cards. We will return to this point.

 

What about the American Constitution?

The American Constitution is the oldest written constitution in continual use. The hope of those who framed it was that Americans might be the rare exception as a people who might “[establish] good government from reflection and choice” rather than “depend, for their political constitutions, on accident and force.” (Federalist 1). Speaking to the aspirational nature of the Constitution, Lincoln described the Constitution as making possible the ideal of “liberty for all” as expressed in the Declaration of Independence. The Constitution is a frame of silver, meant to adorn and protect the apple of gold, the possibility of freedom and hope and prosperity for all Americans.

While the Constitution certainly has aspirational language in its preamble, it reflects principles and assumptions about human nature in its procedures and even in its seemingly “small politics” restrictions. The Constitution includes general language about equal protection of the laws, due process, and the free exercise of religion—all of which require interpretation and application— as well as very specific and rather straightforward prohibitions of titles of nobility and government-mandated guest rooms in private homes for soldiers. All of its provisions, and the changes that have been made since its adoption, make claims about who we are, what political convictions are near-sacrosanct, what is arguable, and how we settle those arguments.

I want to make three observations about what the Constitution sets up with regard to these arrangements and the making of public policy. First, the Constitution creates a federal government with delegated powers while recognizing that the states have “police powers”. While still recognized in theory if often ignored in practice, the doctrine of delegated powers means that the federal government is not authorized to act unless the action can be legitimately tied to some constitutional provision. This doctrine is why Thomas Jefferson agonized over whether he had the warrant to make the Louisiana Purchase, and it is why Lincoln’s Emancipation Proclamation was tied to his constitutional identity as commander-in-chief. States, on the other hand, can act for the sake of health, safety, and morals without an express constitutional warrant. In short, the federal government cannot do anything without express permission and the states can act freely except where explicitly forbidden. This division of power reflects the conviction that the federal government should be tied to what the people’s representatives have explicitly ratified in the written Constitution. Anything not mentioned in the Constitution is reserved for the states and the people. This was not a controversial aspect but an indispensable part of the rationale for the Constitution, and it was so important they hammered the point home in the ninth and tenth amendments.  

Second, the branch tasked with the creation of legislation is, not to put too fine a point on it, the legislature. That is, our constitution followed the pattern of the states by putting responsibility for the creation of laws and policy into the hands of those most accountable to the people.

My third observation is more a claim about what all this means. What conclusion should we draw from this cursory review of American civics? While clearly not a purely democratic document (see the U.S. Senate), the Constitution presupposes that American citizens are competent to make their own decisions about the common good and how to achieve it. The government, then, is a creature of the people, rather than the other way around. We call our representatives and other government officials public servants for a reason. The corollary to this point about the importance of the people is that we should be very wary when non-representative actors overturn duly enacted decisions of the people, whether made directly by popular referenda or through the votes of their representatives in Congress or the state legislatures.

 

A Contested Conclusion

Some of you reading this now see where my musings have been leading. And yes, I do believe the Obergefell decision of this last summer is an egregious example of Supreme Court judges substituting their own moral judgments about the common good for the duly enacted laws passed by the people of Tennessee, Michigan, Kentucky, and Ohio, and every other political community committed to traditional marriage. But put that aside for a moment, if you can, because the burden of my argument in this essay is that Christians (and everyone else) should have a problem with Obergefell and other cases like it, because of what it does to the prospects of our shared civic community (that’s not the only reason to have a problem with the case, but that’s a different essay).

For there is a prior question to that of what outcome we would like to see, and this is the issue I mentioned previously. What rules do we agree upon for the resolving of those things we disagree about? The default and constitutional method for resolving our incompatible visions for promoting the common good is voting, and that is done by representatives who are accountable for their votes. Whatever our cause, when we lose in the legislative arena we can at least take solace in having had a fair shot, or even a long shot. We can regroup, reorganize, and perhaps rethink our position and our tactics. We can back another candidate, or another legislative route to our policy goals. We’ve not only had our say, we can try again. We agreed to the process in the beginning and though disappointed, we can accept the outcome because the risk of losing is the price we pay to live together in relative peace in a pluralistic political community.

The same does not hold true when unelected judges invalidate the democratic deliberations of the people. Justices are not up for election, and for good reason. Lawsuits are not easy to organize, nor is there any guarantee that they will survive the judicial gauntlet to make the Supreme Court’s docket. Supreme Court opinions also do a very poor job accounting for the unintended consequences of their anti-democratic rulings, and this in part because courts are very poor legislatures. Real legislatures can uphold the principles of the winning side while taking into account the legitimate concerns of the other side. Real legislatures can come to principled compromises.

Does this come across as a partisan or “conservative” concern? I hope not. For my progressive friends and neighbors, consider the following quite plausible scenario. The election of 2016 yields a Republican president and maintains a Republican Senate. By the time the new president is sworn in, Stephen Breyer will be 78, Anthony Kennedy and Antonin Scalia will be 80, and Ruth Bader Ginsberg will be 83. Pardon the morbid thought, but imagine a Republican president with the opportunity to place one, two, or more justices on the Supreme Court, leading to a solid conservative majority. Now consider how you would like that progressive nightmare of a court to reason about their decisions when democratically enacted legislation that you favor makes its way up through the lower courts to the Supreme Court. Should such a court act with some deference toward the blue state legislatures most likely to clash with conservative political preferences? If so, is this because this is what courts should do as courts, or should this principle of deference to the people’s representatives only apply to conservative courts? One way of answering this question makes possible a shared political culture in which each side can play the game. The other answer seems to me to be a high stakes version of “Heads I win, tails you lose.”

Consider the reasoning of Windsor, which struck down the part of the Defense of Marriage Act that hampered progressive state policy on same-sex marriage. Justice Kennedy noted in that decision the federal government cannot “put a thumb on the scales and influence a state’s decision as to how to shape its own marriage laws” and thus ruled in favor of progressive same-sex marriage policies in several states. Such a principle was nowhere to be found in Obergefell, also authored by Kennedy, as the federal government put its entire fist down on several states which had defined its marriage laws differently. I should note one doesn’t have to be a traditional marriage advocate to find this opinion weak or even worse. We might struggle with the hard cases of how to understand freedom of speech, but there is no doubt that there is a tangible concept there to consider and apply. There is no plausible way to determine that there has been a right to same-sex marriage in the Constitution lying dormant, undiscovered, and unimagined until this last summer.

 

An Objection

But surely I have skipped an important step, haven’t I? If the courts aren’t supposed to overturn bad decisions by legislatures, what are they supposed to do? What about Marbury v. Madison? What about Brown v. Board of Education? What about all those times the Supreme Court stepped in and righted the wrongs enacted by a misguided or wicked legislature? Surely those core commitments enshrined in the Constitution—those fundamental rights—are too important to be voted on. It is the job of the Supreme Court to protect the people from themselves.

Not quite. For one, for every Brown v. Board we have a Korematzu, or a Dred Scot, or a Roe v. Wade. There is nothing in our Constitution, our political history, or in any study of human nature I am aware of that shows that legally trained judges are any more capable of getting a moral question right than the rest of us. It’s also unclear how a court decision escapes the objection to voting on fundamental rights. Nine justices voting is still voting.

There is a sense, however, in which the Supreme Courts is tasked with protecting the people from themselves. Yet it is not in their own name, but rather in the name of the people who enshrined those fundamental principles when engaging in constitutional Politics. The task of the judge is to weigh decisions and policies of the people by the standards ratified by “We the People,” and doing so well requires interpreting the language and meaning of the clauses that we actually find in the Constitution. It also so happens that such interpretation is what judges are trained to do.

Of course, this itself is a controversial view of what justices should be doing in their deliberations. And fortunately even those on opposite sides of this question on the Supreme Court itself can model respectful conversation and even friendship. But this is one way I would answer the question of how Christians should be informed by our Constitution on these debates about public policy. Decisions like Obergefell gravely erode the possibility of civic and civil discourse because they undermine our trust that our constitutional principles are actually principles, and not rhetorical building blocks for a policy preference that is already determined by someone who has not been authorized to make that judgment. As Lincoln said in his First Inaugural:

[I]f the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.

We should expect our public servants to respect the decisions made by ourselves and our representatives. We should hold our courts to the highest standards when they are asked to review current law by strict requirements of constitutional law. Whatever our political principles, we should object when the rules by which we have agreed to resolve our disagreements are changed mid-stream by those unauthorized for the task. We should respect those on the other side of our political arguments by competing in the legislature and in the court of public opinion, not short-circuiting the democratic process and effectively saying to our neighbors who see things differently, “The rules work for me, but not for thee.” 

Topic #4: Constitutional Framework for Dealing with Public Policy Issues (October 2015)

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Conversation Partners:

  • Micah Watson, William Spoelhof Teacher-Scholar-In-Residence Chair and Associate Professor of Political Science, Calvin College
  • Kathy Lee, Professor of Political Science, Whitworth University

Leading Question: How should the U. S. Constitution inform Christian thinking about public policy issues in America?