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February 06, 2004

Unintended Consequences As The Foundation of Constitutional Rights


Have you been following the feverish attempts on the part of the Massachusetts Legislature to propose a constitutional amendment to overturn the state’s high-court ruling permitting same-sex marriages? (An article on the rather hysterical proceedings can be read here.) I support gay civil rights, and I don’t think this really damages the traditional notion of marriage, so I admit I find all this hoopla a bit surprising.

But my purpose isn’t to agree or disagree with the substance of the ruling in this post; what I want to point out is the bizarre mechanism by which this social change is occurring. To wit, the Massachusetts high court essentially found that state legislators, in passing previous laws, and state voters, in approving a previous change to the Massachusetts constitution, had unintentionally created a right to gay marriage.

As Eugene Volokh at the Volokh Conspiracy pointed out months back (the relevant posts can be read here and here), opponents of these laws and constitutional amendments had noted at the time the possibility that in their enactment a right to homosexual marriage might be created. But proponents of those changes at the time also expressly disavowed any such intention and reassured the public that there was no likelihood of creating that right. Mr. Volokh quotes numerous examples of contemporary sources pooh-poohing the ‘slippery slope to gay marriage’ arguments. I will quote only two of his anecdotes.

The first is from an editorial supporting the passage of a sexual anti-discrimination law; the law was quoted by the Massachusetts high court as supporting their finding in favor of a right to same sex marriage:

An editorial in the Boston Globe, Oct. 15, 1989, at A30, said "[A proposed antidiscrimination barring sexual orientation discrimination in credit, employment, insurance, public accommodation and housing] does not legalize 'gay marriage' or confer any right on homosexual, lesbian or unmarried heterosexual couples to 'domestic benefits.' Nor does passage of the bill put Massachusetts on a 'slippery slope' toward such rights."

The centerpiece of the Massachusetts high court opinion is its reference to the passage in the state constitution that reads: "Equality under the law shall not be denied or abridged because of sex". This language had been inserted as a consequence of the passage of the Massachusetts Equal Rights amendment. Mr. Volokh notes that many opponents of the federal Equal Rights Amendment had included claims by opponents that its passage would lead to gay marriage—which were explicitly denied by the bill’s supporters:

"Opponents, for example, suggested passage of ERA would mean abortion on demand, legalization of homosexual marriages, sex-integrated prisons and reform schools -- all claims that were hotly denied by ERA supporters." U.S. News & World Report, Apr. 28, 1975.

"Discussion of [the ERA] bogged down in hysterical claims that the amendment would eliminate privacy in bathrooms, encourage homosexual marriage, put women in the trenches and deprive housewives of their husbands' support." N.Y. Times, July 5, 1981 (excerpt of a book by Betty Friedan).

"The vote in Virginia [against the ERA] came after proponents argued on behalf of civil rights for women and opponents trotted out the old canards about homosexual marriages and unisex restrooms . . . ." Wash. Post, Feb. 19, 1982 (column by Judy Mann).

I take all this to mean that it is unlikely that Massachusetts legislators or voters would have passed these laws or amendments if someone had been able to authoritatively predict that their consequence would be a court ruling in favor of same-sex marriage. Obviously, I don’t have a time machine to go back and prove this with a poll of the relevant parties, but I think the frantic reaction in today’s Massachusetts offers strong support for that conclusion.

So, I wonder how it must feel to gays—if they stop to think about it—to realize that they owe this new right to a series of, er, mistakes on the part of Massachusetts legislators and voters. That, at least, is essentially the logic of the Massachusetts high court's opinion, which doesn't make the least attempt to justify its ruling on the basis of 'original intent' of the state's electorate in passing the Equal Rights Amendment.

Now, I doubt very much that this erstwile logic bothers the gay community, because of course they know that the Massachusetts high court didn’t really do anything silly like rely on the wording of either the constitution or previous legislation in making their decision. Nah, the high court members sampled the cultural winds, decided it was time for a change, and then rationalized their piece of judicial ‘legislation.’ The game is, of course, given away entirely by a sentence in the recent second high-court decision:

This is not a matter of social policy but of constitutional interpretation.

Which, of course, lets you know that it absolutely is a matter of social policy. (Talk about getting caught with your hand in the cookie jar...!)

Now, I understand that all right-thinking Americans will gasp with horror when I say cynical things like that, but let’s get real: why should citizens lucky enough to be made life-despots on a high court, whether state or federal, do anything else? Does our system of government restrain the whims of our judge-despots by insisting that these courts interpret such questions in light of the intent of the people who drafted or voted for the laws or constitutions or amendments in question? Nope—not a requirement, boys and girls.

But surely the courts must rely on legal reasoning when interpreting such documents, right? It’s not a matter of anything goes, right?

Well, perhaps someone much smarter than me could point out exactly how ‘legal reasoning’ differs from unfettered judicial whim. I can’t see the difference. I know of no principles restraining judicial interpretation. I know of no attempt to create a rigorous set of judicial terms or strict method of parsing constitutional utterance (a sort of legal equivalent to Boolean algebra or symbolic logic) that would bring an element of objectivity into constitutional analysis. Nah, it’s much simpler to just turn knotty questions like this over to the judicial despots, and let them perform their mystical mumbo-jumbo (i.e., write a judicial ‘opinion’) before getting the constitution-tikki-god to utter the oracle they’ve decided the people need.

Actually, the real question for Massachusetts legislators who oppose same-sex marriage should be: why do they think that a constitutional amendment will change anything? I mean, it’s not as if the high court justices won’t be able to find unintended consequences (to their liking) in the revised document.

Face it guys, there are simply no controls whatever on these judicial despots. Either change that, or learn to stop worrying and love the courts.



posted by Friedrich at February 6, 2004


Reminds me of affirmative action. People sponsoring the Equal Rights Act explicitly promised that it wouldn't lead to quotas.

It's a good question: how to restrain the judges? There's always a catch like that in politics, isn't there? I mean: how to police the police? How to judge the judges? How to use power to restrain the power-hungry? Reminds me of that principle that there's no way to justify math from within its own premises, which I've always taken (naively, I'm sure) to mean that there is no such thing, and can be no such thing, as a perfectly closed system.

Which means what? That we ultimately have to rely, at least to some extent, on luck and the goodwill of other human beings? Eek.

Posted by: Michael Blowhard on February 6, 2004 1:47 PM

I think I love this posting, Friedrich -- if it means what I think it means. Which, in a nutshell, is:

The US government (and each of the individual states) has three branches. All three branches have powers. All three branches can do highly controversial things more or less willy-nilly: the president can invade a foreign country based on an imminent threat that doesn't exist; a well-placed senator can load an unrelated bill up with pork for his home state, safe in the knowledge that the bill won't be vetoed; judges can interpret the constitution to find a right to gay marriage which the people who wrote that constitution never intended. That's the way our democratic government works. If one branch of government didn't have reasonably strong powers, it wouldn't act as much of a check on the other two, after all. So it's a bit rich to criticise an independent judiciary for being "undemocratic": it's a vital and necessary part of our democratic system. The people didn't vote for the judges? Well, they didn't vote for the President, either, remember.

Posted by: Felix on February 6, 2004 2:25 PM

Police to control the police's been done - and failed - in the greatest experimental flap of all times and peoples - SSSR. Even if the said police is removed from within the system to be policed. See this Lenin's article, of 1923 about a special inspection government committee for interministries control. Control organs are proven to multiply in progression; a quote from "poputchik" Mayakovsky: "Oh, if there was one more meeting re: demolishion of meetings in their entirety!"
Sort of same failed logic seems to be applied, however, over and over again - office of Homeland security to illustrate. [Correct me, please, if I'm wrong - I really want to be wrong!)

Is there a solution to it? My only hope we don't have to rely on "goodwill of other human beings". Eek, eek and more eeks.

(Note aside - googling 'Lenin' articles' brought 42750 items - talk about "Lenin will live forever"!)

Posted by: Tatyana on February 6, 2004 2:41 PM

After posting, just noticed Felix's comment.
So, there is going to be a food fight, after all!

Posted by: Tatyana on February 6, 2004 2:45 PM


When you look at the Federalist papers, you'll notice a lot of discussions about the powers of the President and the executive branch, and a lot of talk about the powers of the Congress and the legislative branch. What you don't see (and I know this 'cause I looked) is any discussion of what the task of the judiciary is, or how it's powers should be subject to limit, etc. I think the failure to think through what the real task of this group is (or ever was) is a serious intellectual shortcoming of the U.S. system of government. And this problem is one of the central issues that explain the more or less continually disgraceful performance of the U.S. legal system.

Hey, you can laugh at this post, but try laughing the next time (the first time?) you go into court. You won't be laughing long--unless you get a law degree and embark on a career of legal freebooting.

Posted by: Friedrich von Blowhard on February 6, 2004 3:18 PM

1. While judicial interpretation is not an exact science, there is such a thing as reasonable and unreasonable interpretation. Simply using experience and common sense, one can think of examples where a reading of a work of fiction turned out to be 'wrong' based on further evidence (e.g., a closer reading of some later passage).

Much modern continental philosophy is concerned with "hermeneutics", the science of interpretation. Some sortof claim that interpretation is arbitrary and the reader has complete freedom (this tends to be the right-wing interpretation of Derrida, Lyotard, and Barthes), others claim there is a social basis for this (Heidegger).

In any case, judicial precedent sets a de facto standard for what is acceptable as forms interpretation. The precedent is complex, and considering the behavior of thousands of judges we see something like a Bell curve (some more liberal, some more literal). But the whole institution of law-school, media, appelate courts, history, all contribute to this social fact--that judges have some (but not all that much) freedom of interpretation. Some amount of "Judicial Activism", so decried by the right, is a fact of contemporary America and has been for a while. IMO, it is legitimate simply because this is an established social practice. So we shouldn't really be surprised by novel interpretations of old laws. (Further, it seems to me that it is the burden of every generation to renew its 'social contract' with the government, by reinterpreting the constitution in ways that are relevant to contemporary society).

2. It seems to me, there is a much much more important question here: does the fact that what the ruling is just and moral (IMO) overrule any concern about the legitimacy of the means used to produce that ruling? In other words, is justice and truth more important than the institutions used to produce them? Who cares if the judges overstepped their bounds if they did what was right? In other words, when laws are unjust should we disobey them? I can't help but thinking of Crito...

Posted by: nick kallen on February 6, 2004 3:28 PM

Mr. Kallen:

I am confused by your statement:

But the whole institution of law-school, media, appelate courts, history, all contribute to this social fact--that judges have some (but not all that much) freedom of interpretation.

Please be more specific about what restraints any of these factors have on judicial whim, er, freedom of interpretation. I would appreciate it if you would illustrate your notion of these constraints with examples from recent U.S. Supreme Court decisions, or with examples from state high court decisions that are not subject to U.S. Supreme Court review. Also please illustrate by providing a discussion of the several sections of U.S. Constitution which have, as a practical matter, been deleted from the document by judicial fiat, er, interpretation.

In fact, you can begin your discussion by showing me where the Constitution grants the courts the power of judicial review of legislation.

I look forward to your study.

Posted by: Friedrich von Blowhard on February 6, 2004 3:39 PM

Well, Friedrich, for one thing, the fact that the Massachusetts decision can't be appealed to SCOTUS shows that there are some restraints on what the US Supreme Court can and can't do. The notorious interstate commerce clause (surely the most abused piece of legislation of all time) clearly doesn't go so far as to affect absolutely everything the states do.

As for the "more or less continually disgraceful performance of the U.S. legal system," which legal system would you prefer? For my part, I have simply taken your advice, and learned to stop worrying and love the courts. Sometimes judicial activism does good things (Roe v Wade springs to mind, or Miranda rights), and sometimes judges come up with bad decisions, most of which are overturned on appeal. But in aggregate, I see no evidence that laws created in response to judicial fiat are in any way inferior to laws created by the legislature.

Posted by: Felix on February 6, 2004 3:59 PM


I take it from your sanguine description you haven't personally been a party to a lawsuit lately, or gotten divorced lately, or been a criminal defendant lately. My suspicion is that until people are really at the receiving end of judicial 'discretion' they don't know how scary it can be.

And I'm not sure, looking at how divisive the topic of abortion continues to be, if Roe v. Wade is quite the unmitigated good you perceive it to be. Roe v. Wade always reminds me of the way the U.S. got rid of slavery; i.e., at such an exhausting cost that the freed slaves continued to remain somewhat less than 'free' for a hundred years. Judicial activism is sort of like war: it can force a certain outcome, but the 'defeated' are rarely reconciled to the outcome, and keep up the struggle underground, so to speak.

Posted by: Friedrich von Blowhard on February 6, 2004 4:38 PM

The law has always been subject to interpretation, but I really think things have gotten a bit out of hand of late. Judicial appointments have (obviously) always been tied to a form of political patronage, and ideology has always been a factor in the appointment process. However, ideology was never as important as it is today.

It seems to me that at the Appeals & Supreme Court level, the federal judiciary really has become something like a shadow legislative branch, a branch that has for the most part worked to advance any number of liberal social policies. The Democrats frankly acknowledge this -- which is why they've been making such a fuss over Bush's appeals court nominees. The judiciary has been invaluable to them in the past by incrementally setting legal precedents that make the implementation of various liberal policies much easier -- especially if the court just goes ahead and does it for them.

Roe v. Wade is a classic example of this kind of judicial overreach. There the court answered a question that they weren't even being asked to address. The question before them was narrowly focused and didn't naturally extend to the question of a woman's Constitutional right to an abortion. The Court's response took just about everybody by surprised.

The political contentiousness of judicial appointments has been exacerbated by the federal court's increasing tendency (IMHO) to do just what Michael thinks the Mass. court just did -- that is, replace sincere legal reasoning with simple judicial will, and then provide a post-hoc legal rationalization. "Because I said so", instead of "Because the law as it stands compels it".

Among the many problems with this kind of legal decisionmaking is its ephemerality. The "privacy right" said to inhabit the Constitution somewhere in the 14th amendment is an example of this kind of thing (and one often mocked by conservative legal scholars). This privacy right isn't explicitly expressed anywhere in the Constitution, but is said to exist as an "emination" of the Constitution, found in its "penumbra" (if I remember the language correctly). That's not to say the the notion of an implied privacy right is ludicrous, but when you can't point to where it's found your case is significantly weakened. All it takes for the "privacy right" to go away, basically, is for judges to stop believing in "emanations & penumbras" cast by the Constitution. You can't contradict them by pointing to an explicit place in the Constitution.

Thus the fight over federal judges becomes even more bitter, because Democrats sense that all it takes for a whole range of Constitutional precedents to collapse is a lack of judicial will to prop them up. If you don't see the eminations, they just aren't there.

Per Mr. Kallen -- maybe justice and truth are more important than the institutions that produce them, but what if the public feels that institutional decisions that they have little control over are neither moral nor serve the truth? Then institutional decisions appear to be fraudulent, and the institution loses respect.

The Roe decision pretty much single-handedly jump-started the rise of Christian Fundamentalism as a political power. Before Roe, fundamentalist preachers like Jerry Falwell explicitly discouraged overt political activity -- they basically believed that God would provide, and that good Christians should "render unto Ceaser what is his". After Roe, fundamentalists came to believe that the government (or at least the courts) were actively hostile to their faith, and explicitly immoral -- leading Falwell to found the "Moral Majority".

A politically contentious state-to-state debate over the legality of abortion was already under way when Roe was handed down. An increasing number of states, via their legislatures, not the courts, were allowing abortion. Every state was going to have to face it, and the process would have taken years. What the Supreme Court did in Roe was short-circuit this debate and almost entirely remove an essentially moral issue from voter control. The result (as I see F. Blowhard has noted above) is an issue that is ultimately settled nowhere.

Posted by: Twn on February 6, 2004 4:58 PM

Yes, well, Roe v Wade reminds me a bit of the way that the US got rid of slavery, too. Sometimes, legislatures simply won't do the right thing, in which case it's good to force the issue. Yes, in an ideal world, the legalisation of abortion and gay marriage would have come from the legislature rather than from the judiciary. But better it come from the judiciary than that it not come at all. And in the case of slavery, it's almost literally black and white. If the South wouldn't abolish slavery on its own, then...

But I'm interested in finding out what, exactly, you're advocating here. A mechanism to stop judges alone deciding on guilt or innocence in criminal cases? We've got that: it's called a jury. A mechanism to let people get a second opinion in civil cases if they don't like what their first judge says? We've got that: it's called the appeals system. A mechanism to let the legislature pass legislation which overrules the effect of any judicial activism? We've got that: look at the way the Massachusetts legislature is gearing up to pass an amendment to the state constitution banning gay marriage.

Yes, the US justice system is flawed. It allows the death penalty, for one thing, and the country is certainly in dire need of tort reform. And the US system, just like every judicial system in the world, would be better if it had more money and things could be speeded up. But my sense is that you're complaining here without any ideas as to what you'd do to fix things.

Posted by: Felix on February 6, 2004 5:00 PM

What Twn said.

As for the Supreme Court's abortion ruling, out where I grew up, even those people who were pro-abortion seemed quite convinced that the elites were pulling a fast one. When courts carry on like that, they aren't doing much for national cohesion, respect for the government, a sense that we're all in this together, etc ...

Posted by: Michael Blowhard on February 6, 2004 5:22 PM

Felix, your argument is completely indistinguishable from the argument for absolutism, and it's the one made by all people who find themselves on the winning side of injustice. It amounts to saying that we might as well live under some kind of tyranny, since the democratic process doesn't always work as quickly as you would like. Of course, as long as the courts are, broadly speaking, ruling your way, you're satisfied. It's as parochial and unprincipled a position as I have ever seen, though I'm at least glad to see somebody explicitly avow it. This is the final stopping place for the present left-wing view of the role of the courts: might makes right.

You might like today's ruling, but what will be your argument against tomorrow's? You can't honestly have one, and any legal justification you try to provide for your view of things will be hypocritical posturing. My advice is this: don't ever give your friends any power you wouldn't want your enemy to have. One day you might have to pretend that Constitutional constraints and logic actually count for something.

Posted by: Sage on February 6, 2004 5:35 PM


A full airing of the things wrong with the legal system could occupy us for days. But let me give a small example from my own experience. I bought my house from a small contractor, X, who not only built the property but lived in it. I had water problems, which were clearly the result of inadequate construction practices. They were, of course, latent. After the sale and a good rain made them patent, X refused to do anything about the problem. According to California law, contractors have strict liability for such latent defects for 10 years, which covered my problem. Previous owners, on the other thand, only have a duty to disclose problems (X claimed not to have noticed the water problem.) Now, the question here was: under the law, was X a contractor or was he the previous owner? I would absolutely win if he was the contractor, while if he was the previous owner my prospects hinged on whether he was believed when he claimed he never experienced such problems--and I had no 'proof' that he was lying. How is this distinction settled under California law? You have to sue, and, at trial, the judge will inform you how he sees the matter. Since a lawsuit of this type will involve significant costs and possibly years of aggravation, do you go forward? Now, you might wonder why, when multiple laws (about the duties of a contractor and about the duties of a previous owner) overlap, why there isn't an established rule to explain which takes precedent or how the two statutes might be harmonized. But no, that's not the kind of thing the U.S. legal system bothers with. So I went forward and sued, and three years later cleared $20 grand (that is, I got $40 and paid $20 in legal costs). If I had been dissatisfied, I could have appealed, but the appeal (which I would pay for) would cost, um, at least $20 grand. Hence, if I had lost, I would have effectively been out $20 grand and would have had no practical alternative, even if the judge had been certifiably insane, because the costs of the appeal would have eaten up any possible recover. You have to remember, as a practical matter there is no way to know what the law really is until you are at trial. You may think this is a trivial point, but the law is absolutely chock-full of these ambiguities. What we have is a situation where because there is too much law, for practical purposes there is no law, only judicial whim. And this judicial whim is absolutely unknowable prior to trial. (So much for the notion that the law really exists to give the citizenry advice on how to go about their business...and stay out of court. Hah!)

This may sound trivial until, as I noted above, your life gets swallowed by these types of issues. (Talk to anyone going through a divorce.) Honestly, I have spent a fair amount of time with my fellow small business owners, most of whom have been involved with litigation at one time or another, and we are agreed that for civil dispute resolution, it would be better just to stake the case on a role of the dice than to have to painfully work through the 'justice system.' It would be faster, no less random in its outcome, and you would save lawyer fees. (The massive shift to private arbitration systems shows what corporate America thinks of our justice system.)BTW, it has not escaped the notice of the small-business owners that the system pays off handsomely for lawyers while doing very little for anyone else.

I grant you that judges aren't really the villians here; the problem is essentially structural. The law needs to be seriously simplified and disentangled from all notions of 'justice'--which maybe God can deliver, but which the courts never get close to. Legislatures have to think hard before enacting new laws to see how they interact with existing laws. Of course, you also have to take into account that the lawyers would fight you at every turn; after all, their livelihoods depend on the law being too complex and unpredictable for the average citizen to comprehend or navigate on their own. And given the significant clout of lawyers, not only with the Democratic Party but with legislatures throughout the land, the hopes of this happening are very slight. Oh well.

Posted by: Friedrich von Blowhard on February 6, 2004 6:09 PM

Sage, you're half right. Yes, I think that the courts are very powerful and not very accountable. The thing is, I don't consider that to be worse than the other two arms of the government -- the legislature and the executive -- which are also very powerful and not very accountable. People feel slightly more comfortable with them because every couple of years there are elections -- but it's almost unheard-of, these days, for an incumbent Congressman or Congresswoman to be kicked out in an election, and no matter what your views are on the 2000 presidential election, there's simply no way you can construe it as giving Bush a mandate to go off on the kind of crusade we've seen over the past three years.

It's not that I'm unworried about tyranny, you see: it's that I see tyranny all over the government, while you see it only in the judiciary. And I see many more checks and balances in the judiciary than I do in the rest of the government. In general, I have very little faith in elected officials, and conomittantly more faith in unelected officials. I'm sure that if Friedrich has come up against both an elected judge and an unelected judge, he will have preferred the unelected one.

Posted by: Felix on February 6, 2004 6:17 PM

Friedrich --

Well, at least we now know the answer to the rhetorical question oft aimed at contractors, "would you do this kind of thing if you were building your own house?" -- evidently, the answer is yes!

But I'm also sympathetic to lawmakers, who are often not lawyers, and who generally have reasonably good intentions, albeit with sometimes disastrous unintended consequences. I think the answer here is not wholesale changes to the way that laws are enacted and the structure of the constitution. Rather -- and you hinted at this in your own comment -- it is through taking civil cases out of the court system entirely, and moving instead to a system of arbitration and mediation. Such a system is a lot cleaner, faster and more efficient than the courts, and is certainly better than rolling dice. The fact that corporate America prefers private arbitration to public courts is not, I think, a sign that there's something egregiously wrong with the public court system: rather, it's simply an indication that the private sector might be able to resolve certain civil disputes more effectively than the public sector can. And there's nothing wrong with that.

Posted by: Felix on February 6, 2004 6:36 PM

1. re felix's argument: "It's as parochial and unprincipled a position as I have ever seen,"--Sage perhaps you are being a bit pugilicious here? Lots of smart, principled people have argued for enlightened absolutism, I could name a dozen philosophers (of left, right, liberal, and conservative persuasions). Whether Felix is in fact arguing for tyranny or not is unclear. In any case, I've already asked the question: is what's right more important than the institutions that are involved in deciding what is right? If the answer is "yes", then we should embrace a tyranny of truth, virtue, and justice--by whatever social practices (e.g., the judiciary, the civil war). If the answer is no, then we can investigate whether the judiciary has too much power (which Felix has begun with his "we've got that" line of thought).

My opinion is that we need to judge each case separately and do our best to ensure both that justice is done in individual cases and that the institutions themselves are preserved such that the most justice is done in bulk and so that society operates smoothly for a long time to come. On a per case basis, certain rules will have to be broken, even to the point of war or revolution, for justice; or, on the other hand, certain terrible injustices endured for the sake of the rules, of society itself. This may be unprincipled, because in principle I am against principles; but this is anything but a parochial position.

In any case, Sage, I suggest you explore this issue in more depth than dismissing the "left-wing" with the cliche "might makes right". People in power do good and bad things. The relevant question is whether abuse of power for the sake of justice is justified in any case. It is not a left or right wing issue. The fact that we tend to label this "left-wing" judicial activism is, perhaps, an injustice to the right. If the right is associated with homophobia and disavows a woman's right to choose, then call me left-wing. That may be the Michael Savage right, but it isn't the William Safire right. I suspect these social issues are being addressed by highly educated people (judges) and they make better informed decisions than the rabble. In other words, legalize gay marriage!

Posted by: nick kallen on February 6, 2004 7:05 PM

The relevant question is whether abuse of power for the sake of justice is justified in any case.

Nick, I agree with most of what you say, but I would simply point out that "abuse" is a loaded term. Using power for the sake of justice (Superman, say) is a Good Thing. Abusing power is a bad thing. Whether a certain instance of power constitutes a use or an abuse probably depends on whether or not you consider the outcome to be just.

That said, I do understand the argument that the Massachusetts court has abused power to a worthy end. I'm just not very swayed by it. What makes this an abuse? Clearly not the fact that the result is unjust: ex hypothesi, it isn't. Is it the fact that judges are unelected? I think nearly all people who stop to think about the matter, on both the left and the right, think that elected judges are a Very Bad Idea. Is it the fact that the judiciary has such power at all? As I pointed out at the beginning, the judiciary acts as a check and balance on the legislature and the executive. It needs power in order to fulfill that role.

Which leaves us with the old canard about how judges shouldn't make law, that the legislators' job. Well, technically, the Massachusetts judges didn't make law. They just found the marriage laws as they stand to be unconsitutional, since they discriminate on the basis of sex. Gay marriage is not now legal in Massachusetts: it's now the job of the legislature to come up with a constitutional marriage law. OK, I can see the argument that what the judges did was tantamount to making law. But my point is that judges have to be able to find laws unconstitutional, otherwise there's no point in having a constitution in the first place. And when that happens, the law has to be changed. You can't say that all such instances are an example of the abuse of judicial power.

Besides, what the judiciary is doing here is basically standing up to a different tyranny: not that of judges, but that of the majority. Most people in Massachusetts want to discriminate against gays, and the legislators are on their side? Well, we here judges are not judging a popularity contest, we're upholding the constitution, which says that such discrimination is wrong.

Three cheers for the use of power for the sake of justice, say I!

Posted by: Felix on February 6, 2004 7:22 PM

I dunno, what you guys are saying seems to me to boil down to: as long as I like the outcome, whatever they do is OK with me.

Posted by: Michael Blowhard on February 6, 2004 7:32 PM

The Framers didn't debate the role of the American judiciary too much, it's true. But they had a reason not to. Unlike the presidency and the Congress -- both of which were fairly new, radical constructs of the time, and both of which diverged from British models (how does one institute a House of Lords in a country without hereditary Lords?) -- a social and cultural framework for a functioning judicial system had been established in England over about five hundred years. Under British common law, judges tended to work out the role of the judiciary as they went. This system of common was the crowning achievement of Britain to that point. In fact, it worked so well that the Framers adopted it wholesale.

The possibility that a republic might degenerate into mobocracy was a major concern of the Framers, and they saw a British-style judiciary as a valid check against that. Life terms ensured that US justices could secure individual liberty against the majoritarian tyranny the Framers most feared.

Bottom line: The Massachusetts Court did precisely what a court is supposed to do. It did not usurp its authority; rather, it checked majoritarian tyranny. The Framers would be proud.

Posted by: Tim Hulsey on February 6, 2004 8:12 PM

From Michael:

I dunno, what you guys are saying seems to me to boil down to: as long as I like the outcome, whatever they do is OK with me.

That's a common attitude on the Left and the Right. For my part, I don't always like the outcome of court decisions, even when they're clearly the right ones.

For example, take the recent Supreme Court decision upholding U of Michigan's undergrad affirmative action policy. I'm against affirmative action not because it hurts White students -- it doesn't -- but because I've seen firsthand that it hurts minorities (esp. Black Americans). So I would have loved the Court to rule against U of Michigan's undergrad policy.

But, in the end, the court's decision to uphold U of Michigan's undergrad policy was wise, because the federal government ought to have no constitutional authority to oversee the minutiae of college admissions. Imagine what would happen if they did -- every application would be a legal nightmare, and admission to the college of your choice would take several years instead of a few months.

I didn't like the outcome, but it was absolutely fitting and proper.

Posted by: Tim Hulsey on February 6, 2004 8:16 PM

I still think you guys are missing the point. I said I agreed with the ruling, but specifically wanted to discuss the procedure. Saying that you like the ruling without critiquing the procedure by which it was developed seems, er, disingenuous. Let me reiterate the state of the modern judiciary in its constitutional law aspect: it locates profound rights in the unintended consequences (since it can't possibly argue original intent) of the framers and amenders. Is that really a sound intellectual practice? Or does its pretzel-twisting nature suggest an essentially legislative agenda?

Posted by: Friedrich von Blowhard on February 6, 2004 8:27 PM

"Well, technically, the Massachusetts judges didn't make law. They just found the marriage laws as they stand to be unconsitutional, since they discriminate on the basis of sex. Gay marriage is not now legal in Massachusetts: it's now the job of the legislature to come up with a constitutional marriage law."

See, not being a legal scholar, this is the one point I never quite folla: it's like the recent SCOTUS decision which struck down the Texas law making sodomy among same sex couples illegal, due to "equal protection under..." Everybody said---they've now made homosexuality "legal" and gay marriage can't be far behind!!!! Whaaaa???

I don't see how they did that. The Texas legislature, being a bunch of brain surgeons, passed a dumb law which was begging to be overturned, because they applied it ONLY to same sex couples. I guess those good ole boys like their sodomy just fine if it's heterosechshul acktiviteee! So the SCOTUS said that law was unconstitutional. How did that "make new law"? Go pass a constitutional ban on sodomy and it won't get struck down.

Go pass a constitutional ban on gay marriage (if that is possible to do) and it won't get struck down. Or what am I missing?

Posted by: annette on February 6, 2004 8:52 PM

Bottom line: The Massachusetts Court did precisely what a court is supposed to do. It did not usurp its authority; rather, it checked majoritarian tyranny. The Framers would be proud.


So for 200+ years now, the only thing between homosexuals and marriage has been "Mobocracy?" The "tyranny of the majority"? If that's so, then the court system has been an unqualified disaster, and the framers were fools.

First of all, as I'm sure you know, the framers wouldn't regard the denial of marriage to homosexuals as tyranny or anything like it. They probably wouldn't even understand it as a serious proposal. Unlike slavery, which the framers well knew was a huge problem contradicting the Constitution that many suspected would cause big trouble to the Union down the road, I'm sure that in the framer's minds the notion that homosexuals would one day agitate for state-sanctioned marriage would never occur to them as even being among the realm of "self-evident truths" Jefferson referred to in the Declaration.

Second, he court system's role is not merely to check "majoritarian tyranny". Just about anything might be defined as majoritarian tyranny -- like, say, bars against polygamy -- or setting the voting age at 17, not 18. The Courts aren't supposed to operate utterly divorced from the social mores of the majority culture that sustains them, but (again, it seems to me) they are doing so with increasing frequency. You may argue that the society's mores have changed to the point where gay marriage is O.K., and you may indeed be right, especially in Massachusetts. Then let people decide for themselves. You might be surprised -- the awful majority might even approve of it, if asked!!

And if they neglect to? Society decides that marriage ought to be between man and woman, but civil unions are o.k.? So that would be a heinous excresence on the face of the Constitution, and a black mark against liberty? Give me a break.

Further: As I said above, the rationales for many of today's constitutional precedents is ephemeral. They just aren't rooted in anything you can point to, in law or constitution, apart from judicial creation. Applaude the enlightened and elite opinion of the justices if you will, but without more explicit legal foundation, all the majority need do is ensure that judges reflect their point of view, and the decisions you applaud today may evaporate tomorrow.


It's not that SCOTUS proclaimed gay marriage was legal -- they didn't, in so many words. The court system works from precedent, and when you make an argument to the court you do so with the court's prior precedents as foundation for your arguments. Many criticized the Court's decision in Lawrence (that's the Texas sodomy case you're referring to) because they feel it established a precedent that will allow a compelling argument that a state's denial of gay marriage is unconstitutional under the federal Constitution.

Further, Lawrence did not strike down the Texas law on the grounds of "equal protection". It could have, and I wish it had, because it would have grounded the decision on actual language found in the Constitution. The decision (written by Justice O'Connor) was grounded in the "right to privacy" felt to exist in the 14th Amendment -- a right first established by precedent back in the 60's in a case over the legality of contraception, Griswold v. Connecticut, if I remember right.

Posted by: Twn on February 6, 2004 9:43 PM

Let me reiterate the state of the modern judiciary in its constitutional law aspect: it locates profound rights in the unintended consequences (since it can't possibly argue original intent) of the framers and amenders. Is that really a sound intellectual practice?

Of course it's sound intellectual practice. Laws consist of words, after all, and words have a remarkable tendency to survive the people who write them. They also have a tendency to outlast or outstrip whatever their original intent might have been (not that "intent" is easily reconstructed -- after a certain point you just have to go with what is written).

The slippery nature of language requires human beings to serve as interpreters of law. Interpreting is by its very nature an "activist" endeavor, since all interpretations on some level involve judgment and subjectivity. But as long as a judge's interpretation of law is supported within the text and follows judicial precedent, it can be construed as legitimate (unless a judge in a higher court overturns the decision -- one of the many checks we've instituted against the arbitrary exercise of judicial power).

British common law has served us so well, because its view of the role of judges has remained consistent with what we'd consider "sound intellectual practice."

So for 200+ years now, the only thing between homosexuals and marriage has been "Mobocracy?" The "tyranny of the majority"? If that's so, then the court system has been an unqualified disaster, and the framers were fools.

WOW, Tyn. Take a virtual valium and a deep breath. You're freaking out.

First of all, categories of sexual identity -- including homo- and heterosexuality -- are only about 100 years old. Second, contemporary Gay identity is only about 35 years old (it's usually dated from the Stonewall riots in 1969). The statutes, precedents and amendments that informed the Massachusetts decision are only twenty-odd years old. And the question of Gay marriage has only been a legal issue for about a decade.

You could say that the struggle for Gay equality reached a critical mass in the early '90s. Even in the 1980s, most Gay people honestly believed they could never expect equal treatment under the law with respect to marriage, let alone sodomy laws, antidiscrimination, and harassment. (I should add that many Gay people of a certain age -- about 40 and up, I've found -- still believe that equality is by and large impossible, and that any attempt to secure equal protection under the law will provoke a massive public backlash.)

Add to this that the courts can't rule on an issue until someone brings a lawsuit to its chambers (and that's the most powerful control we have on the judiciary, Friedrich -- they can't interpret the law until someone asks them to). Until about three years ago, Gay couples in Massachusetts were unwilling to pursue such legal action, probably because they felt there was no chance of winning.

With questions of constitutional law, the important things aren't the particulars of the case, but the general principles involved. In this case, the question was whether an amendment to the Massachusetts Constitution that was written to apply to all people applies to Gay people as well. To put it another way, are Gay people really "people" under the law? The Court decided yes.

The Framers also believed that the majority should have extremely limited power to determine who receives legal rights, or for that matter which legal rights an individual receives. Other than by Constitutional amendment, the people as such have no direct voice in the expansion or restriction of human rights. The Court, on the other hand, has great leeway to protect individuals from majoritarian tyranny. That's part of the checks-and-balances system.

Inasmuch as the Massachusetts court has ruled that the laws of the land apply equally to bi-, hetero- and homosexuals, it has fulfilled the stated purpose allotted the judiciary by the Framers. It has asserted, in compliance with law and constitutional principle, that all people are created equal, even those who are created Gay.

Posted by: Tim Hulsey on February 7, 2004 12:23 AM

You people talk to much.

Posted by: Haiku on February 7, 2004 3:51 AM

I think you mean "too" much.

" established a precedent that will allow a compelling argument that a state's denial of gay marriage is unconstitutional under the federal Constitution."

But maybe it IS unconstitutional under the federal constitution. Maybe that's why they aren't being quite so "activist" as presented.

Again, certainly not a legal scholar here, but the argument that the framers of the constitution never contemplated the notion of gay marriage as an self-evident truth doesn't seem to pack much punch to me. I mean, they didn't contemplate women voting and they still fought duels and they didn't end slavery and they'd never heard of "software" and...

I mean, kinda---so WHAT if they didn't contemplate it? They were all white men of their time and place. I imagine they considered the underlying principles as valid, with recognition that there would be specific circumstances into the future that the actual facts of which they couldn't contemplate at that time.

Posted by: annette on February 7, 2004 7:19 AM

It seems to me that the courts have been rapidly burning through the accumulated moral capital they have built up over the history of the republic.

As Micheal said, it's impossible for any system to be "perfect", and a democratic system will ocasionally need a undemocratic element to get it back on track. However, this element has to be extremly circumspect in it's powers, and at all times the undemocratic element has to be hidden - that's what a lot of the verbiage of legal opinions is about. If judges persist in imposing their views on the rest of the country, eventually the other branches of government will simply ignore them, and people will accept it because the courts will have no legitimacy in their eyes anymore. As Andrew Johnson said in response to one SC ruling - "The court has made it's decision, now let it enforce it."

The courts are ultimatly political institutions, but they don't work if they are perceived as being political.

Posted by: jimbo on February 7, 2004 12:42 PM

I think there is a lack of historical perspective here. The tendency to locate profound rights in the unintended consequences of the framers and amenders is, in fact, a relatively new thing, almost completely confined to the past 50 years. (Remember, there were virtually no "Bill of Rights" cases brought throughout the entirety of the 19th century.) I very much doubt that the authors of the Federalist papers would have advertised the ability of judges to "pull rabbits out of the hat" as a strength of our constitutional system. Such a "rabbit" by the way, was the greatly (and realistically) to be feared desire of the pre-Civil War Supreme Court, dominated by Southerners, to find a case that would serve as an excuse to declare all restrictions on slavery unconstitutional. Chief Justice Taney and his minions would certainly have done so before 1870 had not other matters (like the Civil War) intervened.

So making comparisons to the very conservative British Common law practice of the 16th, 17th, and 18th centuries is disingenous here. I don't believe they specialized in the notion of laying down major social legislation from the bench on the basis of hitherto undiscovered (and clearly unintended) rights mined out of previous law and custom.

But even more than this, I would ask those who are so happy about free-wheeling judicial interpretation a question: what does a constitution that can be made to sit up and bark at the direction of its high-court "handlers" really mean? Anything? Nothing? Why have a 'constitution' at all if your ruling idea is that the law is essentially something judges make up as they go along?

What happened to the notion of a 'government of laws, not men'? That slogan certainly doesn't survive an activist judiciary.

Posted by: Friedrich von Blowhard on February 7, 2004 1:32 PM

I'm not really prepared to jump into the fray here, but I'd like to point everyone to what I think is a pretty good post on this issue by Sebastian Holsclaw:
Complex Analysis and Human Decision Making

Posted by: Andy Danger on February 8, 2004 12:15 PM

I second Mr. Danger's recommendation to read the post by Sebastian Holsclaw, although I would have liked to see some more concrete examples illustrating his thesis. Maybe we can lure Mr. Holsclaw into providing us with some!

Posted by: Friedrich von Blowhard on February 8, 2004 3:42 PM

Washington Post editorial accuses Mass. Supremes of arrogance & judicial activism -- and this from a paper that supports gay marriage:

back to the remains of the weekend -- .

Posted by: Twn on February 8, 2004 4:56 PM

OK, I went to Holsclaw's site. The nut seemed to be this:

In our society change is supposed to come through the democratic branches. All of the legitimate agents for change in a Constitutional system work through some sort of democratic process. A judge's duty is to identify duly authorized law and apply it. Policy changes are supposed to come through the legislature.

If I may get all Friedrichish here, show me where in the Constitution it says that. What I would take issue with is the idea that the legislature, becuase it's directly elected, is democratic, while the judiciary, because it is not directly elected, is not democratic. I prefer to take a slightly broader view, and consider the entire three-winged government as being democratic. When you have a Constitution with checks and balances, it's actually pretty useful to have one part of the government not be directly elected, to help avoid the tyranny of the majority. A thought experiment might help here: if judges were elected, would Mr Holsclaw be happier with judicial activism?

Besides, judges have to do more than apply the law: they also have to apply the Constitution. And where one comes into conflict with the other, the Constitution wins. So if the law says that a man can marry a woman but not a man, and the Constitution says that the law can't discriminate on grounds of sex, then a judge applying the Constitution should find against the law. No?

Posted by: Felix on February 8, 2004 8:39 PM


By your 'logic' above, single-sex bathrooms and sports teams are also unconstitutional in Massachusetts, right? I would point out that the word discriminate requires a definition that can be, er, argued about; nothing, and certainly not constitutional law, is quite as simple as you are presenting it. Volokh's examples demonstrate that the definition of 'discrimination' that the voters of Massachusetts used in voting for the Equal Rights Amendment was a different one than the good judges of the Mass high court are using today. One might even say that the slipperyness of words is a good reason for original intent jurisprudence, no? One of the chief disgraces of the legal profession I alluded to above is the utter failure to consider any kind of logical rigor in constitutional or statutory interpretation.

Also, I think you should read the linked article again; I don't think its 'nut' is the passage you quoted at all.

Posted by: Friedrich von Blowhard on February 8, 2004 9:49 PM

Remember, there were virtually no "Bill of Rights" cases brought throughout the entirety of the 19th century.

Your objection is a classic case of correlation without causality.

There were, for example, federal questions over whether secession was constitutional. The Supreme Court ruled that it was. It also overturned a good deal of Lincoln's Civil War legislation -- including the very first income tax!

For the most part, American governmental authorities in the nineteenth century were extremely wary about overstepping their bounds. They remained small, kept their role relatively limited, and stayed out of trouble. (Governmental policies toward minorities were conspicuous exception to the rule.)

Two 20th-century developments changed all that: the income tax and the New Deal. When governments get bigger, when they have to micromanage social affairs, then courts had a much larger role to interpret these micromanaging laws. Meanwhile, the highest courts have had a much greater obligation to keep this government (including lower courts) in keeping with basic constitutional principles.

> I very much doubt that the authors of
> the Federalist papers would have advertised
> the ability of judges to "pull rabbits out of
> the hat" as a strength of our constitutional
> system.

No, they wouldn't. And if that were what our Supreme Court justices were doing, I would oppose it -- just as I oppose our current system of "family law." (I support tort reform for a similar reason: It places clear limits on the power of judges and juries in a civil suit.)

But the high-court justices of Massachusetts have acted in accordance with the state constitution. It states that no person can be discriminated against on account of gender. The court simply stated that this statement applies to same-sex marriage, because the parties involved in such a marriage are, in fact, persons, and therefore the state cannot deny them a marriage license on account of gender.

So, Friedrich, would you prefer that the Court had ruled otherwise -- effectively stating that under the law a Gay person is not a person? Surely that would have been an egregious case of judicial activism, not to mention an affront to common sense. By this reasoning, it wouldn't matter whether the amendment's authors actually believed that Gay men or Lesbians were "persons" -- because they (we) clearly are persons in fact, and therefore are persons under the law.

As to whether the people of Massachusetts should have a chance to vote on the issue, the best answer I can give is that they already have. In fact, they've voted on it a few times, and each time they approved it. As you've noted, Friedrich, an amendment to the Massachusetts state constitution doesn't just pop out of thin air, nor may it be passed through simple judicial fiat. Legislators have to vote on it (twice), then the state's electorate (twice again). Not an easy process -- in fact, the Federal Constitution is easier to amend than the Massachusetts one.

If the voters of Mass. want to repeal their equal-rights amendment, they'll have to go through their constitutional process all over again -- two votes in successive legislatures, two votes in successive years. But given that only about 5% of Massachusetts voters really care about same-sex marriage one way or the other, I doubt a repeal would stand much of a chance. All the same, if a constitutional amendment is passed to prohibit same-sex marriage, the courts would have to abide by it -- and they would, whether they liked it or not.

Of course, what the courts would do with legally married same-sex couples after an amendment banning same-sex marriage is passed, would be an entirely different question, and perhaps a lawsuit unto itself. After all, our Constitution has this little proviso against ex post facto laws ...

Posted by: Tim Hulsey on February 8, 2004 10:47 PM

Your objection is a classic case of correlation without causality.

What does that mean?

Posted by: Dude on February 8, 2004 11:19 PM


'Correlation without causation' refers to a pattern that has no meaning. However, the expression doesn't mean much at all in this context, because Mr. Hulsey is deliberately ignoring the point I am making (which I suspect he understands very well). To wit: the modern tendency of jurists to enact social legislation through the legerdemain of hitherto undiscovered 'rights' is, in fact, a departure from the notions concerning the roles of courts, high or otherwise, that prevailed throughout the significant majority of American and (for that matter) British history. In short, it is largely an invention of the Warren court, and has no significant historical roots.

Mr. Hulsey:

As I pointed out in a comment above addressed to Felix, the issue is not whether or not gays and lesbians are persons; it turns on the definition of 'discrimination.' I can only suggest that people who were assured that passage of the ERA would not lead to same sex bathrooms and gay marriage could only have assumed that this would be the case because such sex-based distinctions were not held to be 'discrimination.' Hence, the Massachusetts high court is darn tootin' pulling a rabbit out of a hat by adopting a different definition of the word 'discrimination.' Lest you think this is a tortured argument, note that the decision did not outlaw, for example, all forms of state-recognized sexual distinctions...because those state-recognized sexual distinctions (e.g., the tendency of Mass family law courts to grant custody of children in cases of divorce overwhelmingly to their mothers) is not viewed as an instance of 'discrimination.'

In short, this all depends on your definition of 'discrimination', not your definition of 'a person.'

Again, please remember where I started out on this: I have no argument whatever with the substance of the decision--just with the method by which it was, er, put over.

Posted by: Friedrich von Blowhard on February 9, 2004 12:08 AM


Now I see where you have your hang-up. So let's bring in the "star witness" of my case -- the Massachusetts Constitution itself.

The text of Article CVI (otherwise known as the "Equal Rights Amendment") reads as follows:

All people are born free and equal and have certain natural, essential and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing and protecting property; in fine, that of seeking and obtaining their safety and happiness. Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin.

The Mass. constitution says that as long as you're "people," the state can't force you to do anything -- or keep you from doing anything -- solely because of your sex. Given the actual text of the law, the Court could not have ruled in a manner other than it did, unless it stated that Gay people simply weren't "people" under the law.

There would have been considerable public support for the Court, had it made such a decision. Certainly if the Court had rejected same-sex marriage, no one would be accusing it of arrogance or activism today -- unless, that is, he or she had actually read the Massachusetts constitution. And that's the best reason I know for justices to have life terms: They must interpret the law without kowtowing to mobocratic pressure.

Since the Court upheld the Massachusetts Constitution as written, your cries of "arrogance" and "judicial activism" have no legal foundation. Whether they possess some personal and extralegal foundation (e.g., prejudice, animosity), I will leave your own conscience to decide.

Posted by: Tim Hulsey on February 9, 2004 11:55 AM

Almost forgot this one ...

From Michael:

Reminds me of affirmative action. People sponsoring the Equal Rights Act explicitly promised that it wouldn't lead to quotas.

Well, the lower courts said that it did; but the Supreme Court said the lower courts were wrong. Again, it was the correct ruling (and this precedent led to the Court's decision last year against the admissions policy of the U of Michigan Law School). So affirmative action doesn't lead to quotas after all -- in fact, race quotas have been prohibited for the past twenty-five years.

That opponents of affirmative action (and I'm one of them) have failed to get our story straight after a quarter of a century doesn't exactly resound to our credit, I'm afraid.

Posted by: Tim Hulsey on February 9, 2004 12:04 PM

Mr. Hulsey:

We appear to be talking past each other. I can only repeat that the innovation of the Massachusetts decision is not that the courts woke up and saw that gays are people, with all the rights pertaining thereto, but that they woke up and decided that the denying gays permission to marry constituted discrimination against them. And again, I repeat that if an expansion of the concept involved in 'personhood' (to encompass gays and lesbians) was the main issue here, that all forms of state-recognized sexual distinctions would have been of necessity declared unconstitutional, and the court did not do that. Hence, the evidence strongly suggests that they are enlarging the meaning of the verb 'to discriminate' beyond the meaning assumed for that word when Mass passed its ERA. This is a very common piece of judicial slight of hand, and one that explains judicial hostility to 'original intent' jurisprudence, which would of course constitute an obstacle to such strategic shifts of meaning.

Accusing me of being homophobic, by the way, doesn't strengthen your argument, and is also incorrect. Did you read the editorial in the Washington Post linked to above?

Posted by: Friedrich von Blowhard on February 9, 2004 12:40 PM

I'm a bit out of the loop at this point, but I'll respond to a few points.

> I dunno, what you guys are saying seems to me to
> boil down to: as long as I like the outcome,
> whatever they do is OK with me.

I am saying this to some extent (with the caveats already mentioned above). But let me add:

- There is a distinction to be drawn between whether "I like the outcome" and whether I believe the outcome to be true/moral/right. Admittedly it is difficult in practice to distinguish between the two, but I believe gay marriage is clearly a case where legalizing it is the only upright and moral attitude. In any case, and in all cases, it is always up to the subject to determine what is moral, just as it is up to the subject to determine what they like, just as it is up to the subject to determine whether the interpretation of law exceeds reasonable bounds. Subjectivity is an inherent part of the process, but that does not mean that there are not objective truths involved; my point simply is that it does no good to dismiss my (nihilistic) position as "as long as I like the outcome, whatever they do is OK with me." I am concerned with truth, justice, and the american way and shit.

> Why have a 'constitution' at all if your ruling
> idea is that the law is essentially something
> judges make up as they go along?

If I am not mistaken, this is not terribly different than the british view of the constitution? That it is not a written document but the history of laws, procedures, institutions, individuals, and their current embodiment in the individuals in the Parliament? Parliament, like judges, are bound by history and precedent, but exactly what history and precedent is needs to be interpreted by each individual and generation.


Friedrich has pointed out the different interpretations of the word "discrimination". There are two things to consider here. First is whether when two people use the word they literally mean the same thing (as far as a dictionary is concerned; or whether they refer to the same practices in society). However, the word "discrimination" cannot simply be defined by reference to Merriam-Webster, or the practices of one point in time. It is a normative term, and is bound up with cultural practices that subsume and transcend (if only nominally) individual instances. Eliminating discrimination, oppression, etc., needs to be understood as a historical process that is always renewed, and not as if there is a fixed set of injustices that we might finally wipe out with a few more constitutional ammendments.

Discrimination is understood, or ought to be so understood, as a negative feature of our society, denying rights and priveledges to individuals on an irrational basais. The actual force of oppression in our society is the salient concern: as it applies to women, people of color, and the gays. In principle the constitution is opposed to discrimination as such (see Tim's analysis). But what exactly constitutes discrimination changes from year to year. Today discrimination is based on sex, tomorrow sexuality. Today the exclusivity of marriage is not seen as an asymmetrical power relation between the dominant classes and the dominated classes; tomorrow it is.

IMO, Gay marriage is an issue of discrimination consistent with the intention stipulated in the mass constitution as well as the statement that "all men are created equal". How we understand inequality and discrimination changes over time, as it should. This is a very difficult reasoning process, understanding contemporary forms of power balancing it with the tradition of law and power; and we entrust it to the judges who are well-educated in such a process, and take part in an institution whose beliefs and practices date back a very long time. In my estimation the judges made a reasonable and well-informed decision, not to mention one that is just and moral.

Posted by: nick kallen on February 9, 2004 3:18 PM

Friedrich, I think that Nick has you on this one. Judges should interpret the law as it stands, not be masters of diachronic etymology, spending half their time trying to second-guess what the writers of the law meant. "All men are created equal" resonates today precisely because it applies to groups such as gays (and even blacks) to whom it really didn't apply when it was written. If the constitution can't evolve, it must perforce be torn up and rewritten occasionally: we simply don't live in the 18th Century any more, and can't govern ourselves by C18 mores.

Posted by: Felix on February 9, 2004 4:56 PM

Felix and Mr. Kallen:

Thanks for your comments but I think we'll have to agree to disagree. Your defense seems to come down to "the times change, and the government must change with it." Which is all well and good, but would work just as well as a description of a hereditary monarchy or a long-lived authoritarian regime as it would for a constitutional system such as our own. Your arguments seem to assume that a written constitution serves solely as an obstacle to "keeping up to date" and should thus be junked at the earliest possible moment--assuming that keeping up to date is the only possible criteria of excellence in government institutions. (Equally, your apparent distrust of the democratically elected arms of government seems to be motivated by the same urge for the speed and lack of caution in making changes via government coercion that characterize authoritarian rule.) I don't think you have to be Edmund Burke to ask if there are no benefits to a system--which the authors of a written constitution surely envisioned--that makes it a bit difficult to keep entirely 'up to date.'

Also, even assuming we all agree that it's high time to change the rules to 'keep them up to date' the question surely arises of who gets to choose exactly what novelties will be added and when. I'm frankly fascinated that you are so willing to have a single individual, with no relevant training and without having to demonstrate any kind of track record as a wise prognosticator of society's future happiness, making such a decision. I personally don't think a judge knows better about exactly when and how such changes should be made than any other citizen picked out at random--and especially not an arrogant judge (not that I've ever met or heard of a humble one.)

Do you propose to turn all governmental functions over to individuals selected by lot? If not, why not? Both of you seem to be looking for a 'man on horseback' (perhaps a judge on horseback) to save us--from ourselves. Perhaps reading a bit more history might suggest why such salvation might work out a bit more poorly than you seem to assume.

Posted by: Friedrich von Blowhard on February 9, 2004 6:29 PM

Good discussion. And Friedrich, indeed we disagree--but perhaps not all that much, because I do believe in balancing innovation with precedent and history: Felix & Tim have already discussed how history is preserved by the appelate court system, checks and balances with the legislative and the executive branch; and I have pointed out that the constitution needs to be 'reasonably' interpreted by technocrats steeped in its history and some philosophical hermeneutics (in a word: judges). I advocate a (nihilistic) pragmatism, not a conservatism--but I can exploit conservatism when I need to. So I'll take a bit of your Burke but I'll mix him with some of my Carl Schmidt and my Karl Marx.

Anyway, a fun discussion--I'm glad I'm putting my employer's money to good use. Anyway, I hope my writing has been clear, and not too pretentious. If anything these discussions help improve my rhetorical skills.

Posted by: nick kallen on February 9, 2004 7:13 PM

Accusing me of being homophobic, by the way, doesn't strengthen your argument, and is also incorrect.

If your conscience acquits you, Friedrich, I'll accept the verdict. But if all your readers are similarly acquitted, I will suspect at least a few judges of blatant favoritism.

I can only repeat that the innovation of the Massachusetts decision is not that the courts woke up and saw that gays are people, with all the rights pertaining thereto, but that they woke up and decided that the denying gays permission to marry constituted discrimination against them.

Marriage is a legal institution in the view of government. Whatever else it may be it immaterial to the law. The state of Massachusetts refused to confer marriage licenses on same-sex couples because of the partners' gender. Thus, the state of Massachusetts refused to grant persons equal access to a legal institution based on their gender. Amendment CVI of the Massachusetts Constitution says the state can't do that, so the high court said the state couldn't do that any longer. Constitutional law doesn't get more cut-and-dried than that.

Of course, the seven same-sex couples had to file a lawsuit and appeal it to the high court to get this result, a process that took them some years. Don't assume that the Court simply and suddenly "woke up" on the question of Gay equality. After all, it can't make a ruling unless it has a case to rule on. It's far more likely that Gay legal groups "woke up" after losing Hawaii (where judges of the high court also ruled in favor of Gay equality, but delayed their ruling for two years until an anti-Gay-marriage amendement had been approved and taken effect), and determined that in Massachusetts they finally had a winnable case.

By the way, if it still irks you that the Massachusetts court saw Gays as persons, I'd advise a retrial in that court of conscience.

Posted by: Tim Hulsey on February 10, 2004 3:06 AM

And that WashPost editorial? Well, it ignores the facts of the case and misses at least one painfully obvious point: The Massachusetts Constitution provided a clear mandate for this decision, as the Post editors would have revealed had they actually cited the text of Amendment CVI.

Massachusetts could still create civil unions if it chose, but under the constitution those unions will have to be available across the board, to Gay and Straight couples alike, along with civil marriage.

Considering that only 5% of Massachusetts voters are concerned about Gay marriage -- another inconvenient fact the WashPost editors omit -- I doubt that a state constitutional amendment banning same-sex marriage could pass a public vote. The Post's fear of a swift public backlash is as chimeric as the monster under the bed. But though the far-right clamor for a Federal Marriage Amendment is real enough, it predates the Mass. decision, as does Bush's guarded support. Considering that a majority of Americans still believe such an amendment would be a bad idea, it seems not to have much of a chance either.

Posted by: Tim Hulsey on February 10, 2004 3:12 AM

Reading this thread, I can't understand why people become lawyers. Even for the money.

Posted by: I'm just saying... on February 10, 2004 3:48 AM

Mr. Kallen,

I have to take issue with the concept behind this statement that you made:

"I suspect these social issues are being addressed by highly educated people (judges) and they make better informed decisions than the rabble. In other words, legalize gay marriage!"

This clearly says that there is no need for elections in the US, since the "rabble" are unqualified to choose how to govern themselves; that should be left to the "highly educated". Do away with the concept of a representative government, and replace it with an "elitocracy".

I don't thik I've ever before heard someone dismiss the worth of each persons opinion and vote as effectively as you have in these few words. And remember, the kind of government you are advocating is available - hop a boat south out of Miami and it's only a few miles, although the "parent" (USSR) seems to have had problems making the system work.

And, you state authoritatively that gay marriage is moral, because *you* believe it is moral. Does that mean that if *you* believe polygamous pedophilia is moral, it must be so? At what point does the opinion of the majority (the basis for representative government, which, last time I checked, is what the Constitution sets forth) enter into your thinking? Why shouldn't my opinion (that gay marriage is immoral) count as much as yours? (Whoops, I forgot - I'm just part of the "rabble", I need to have you enlightened people explain to me what my opinions are....)

Posted by: Joey W on February 10, 2004 9:49 AM

Mr. Hulsey:

I suspect that we're both past the point of persuading each other of anything, but I must ask one more time: by your reasoning, is it simply a matter of time before the State of Massachusetts is compelled to stop recognizing any sex-based distinctions in its legal activities? Will it find disparate impact in the practices of its family courts that award custody of minor children overwhelmingly to their mothers in cases of divorce? Will state facilities not be permitted to have separate men's rooms and women's rooms? Will state prisons not be permitted to segregate male and female prisoners? All of those institutions--family court, state facilities, prisons--are, I believe, 'legal institutions in the view of the government.' How is it that sex-based distinctions seem to survive in those areas without falling into the same legal conundrum you paint for marriage? Obviously you are free to maintain that such distinctions will--if they survive--be based on the failure of the Massachusetts government to view divorcing couples, drivers at state rest-stops and prisoners as not having attained person-hood. This continues to seem to me not persuasive; rather, I suspect such distinctions will survive as long as another presumption survives: that such sex-based distinctions are not discriminatory. Historically, as best I can figure, when voting for the very constitutional amendment that the court is relying on here, the voters of Massachusetts did not consider that denying same sex couples access to marriage was discrimination, on the perhaps reactionary view that marriage is only conceivable in a heterosexual context (a view I personally do not subscribe to, but which apparently significant numbers of people did (and do) in Massachusetts.)

I repeat, the issue here is not as clear cut as you are attempting to present it. I am also maintaining that a judicial "slight of hand" has in fact been performed on the definition of "discrimination." In this instance, as it affects the substantive outcome, I have not the slightest beef with it. But I think the trend toward judicial 'legislation' is on the whole a worrying one, and a tyrannical one, and so I wrote this post.

P.S. Where your 5% number comes from? The L.A. Times reported presumably on the basis of polls that the population was split 50-50 pro- and con- on this issue. I'm not aware of many issues of concern to only 5% of the population stirring legislators into such a froth.

Posted by: Friedrich von Blowhard on February 10, 2004 11:12 AM

I don't thik I've ever before heard someone dismiss the worth of each persons opinion and vote as effectively as you have in these few words.

Clearly my rhetorical skills are improving.

And remember, the kind of government you are advocating is available - hop a boat south out of Miami and it's only a few miles, although the "parent" (USSR) seems to have had problems making the system work.

It is my opinion that playing the USSR card, like playing the Nazi card, is usually an unfair and poor rhetorical move. Honestly, I shouldn't even waste my time with this, but:

(1) The USSR was not a technocracy, which is what I'm advocating; but rather it was a dictatorship of the proletariat. The Party supposedly embodied the consciousness of the proletariat, who were understood to be the masses (who I prefer to call the "rabble").

(2) The rhetorical fallacy is to play the USSR card assuming that it is incontrovertibly agreed that everything about the USSR is through-and-through evil and wrong and unsuccessful. And implicitly, the USA is understood as the paragon of uprightness and success. And furthermore, that ideology is the causal agent in these extremes. Aside from the fact that different social, geographical, and historical circumstances all contribute to the success and failure of a nation, if we look accurately, we can find instances of both nations killing lots of people and enslaving people for no good reason, and also instances of both nations liberating people to unprecedented heights. I could cite examples, like the fact that the USA killed more Cambodians than the Khmer-Rouge's Maoist genocide; and I can look at the miraculous improvements in the literacy rate and child-death rate in Cuba as a result of Castro's regime. In each case, the ideology is probably not the relevant issue. I'd no sooner claim the decrease in the child-death rate as a success of Communism as I'd claim that killing Cambodians is an inevitable consequence of Capitalism. I'm not really a Communist so I don't neeed to glorify these pinko countries or to denegrate the USA. I mean simply to say that this completely erroneous black and white position has no basis in fact, and playing the USSR-card will gain you absolutely nothing in a debate among intelligent people. This goes the same for leftists who compare George Bush to Hitler. I don't mean to be patronizing, but this is a valuable lesson to learn, so please take my advice. I only wish I knew it when I was younger.

(Whoops, I forgot - I'm just part of the "rabble", I need to have you enlightened people explain to me what my opinions are....)

Mr. Joey W, I'm guessing I wouldn't lump you in with the lumpen-rabble, because if you read this site you're probably an 'intellectual'-- whether you oppose Gay marriage or not. The simple fact of the matter is that I believe that your position on marriage is wrong, and not just that I like the gays and you don't. I want to suggest that gay marriage is not a matter of personal opinion, but that there are larger stakes involved--there are millions of people affected; politics operates by violence, we are talking about the forceful oppression of a group of people simply, and irrationally, on the basis of their sexual orientation. This is not to say that I am necessarily correct on this issue; but simply that there is a right and wrong whether or not I (or you) know which is which.

Posted by: nick kallen on February 10, 2004 3:15 PM

I suspect that we're both past the point of persuading each other of anything, but I must ask one more time: by your reasoning, is it simply a matter of time before the State of Massachusetts is compelled to stop recognizing any sex-based distinctions in its legal activities?

We're talking about denial or inequality of access to legal institutions on the basis of sex. The Massachusetts constitution states that this sort of thing is prohibited. So the courts have to uphold the law when the state government refuses to follow it.

Will it find disparate impact in the practices of its family courts that award custody of minor children overwhelmingly to their mothers in cases of divorce?

I hope so, and I hope that father's-rights groups can mount a successful challenge to the state's system of "family law." The Massachusetts high court could seriously curtail the arbitrary power of family-court judges through such a case.

Will state facilities not be permitted to have separate men's rooms and women's rooms? Will state prisons not be permitted to segregate male and female prisoners?

I rather doubt it -- though I'm also pretty sure the world wouldn't end if they did. (I haven't seen a unisex prison, but I have seen unisex bathrooms -- heck, I have one in my apartment!) Again, there's a difference between this phenomenon and denial of access. A women's prison is still a prison and not, say, a "civil detention" that's sort of like a prison but not quite the same thing. Likewise, even though a restroom isn't exactly a legal institution (the human excretory system being one of the few areas in which the state has not yet seen fit to intervene), a women's restroom is still a restroom, and not a "civil bathroom" that may have toilets but not necessarily lavatories or hand dryers. (You can see how absurd the "civil unions" solution becomes when you apply it to other facets of our lives.)

If women couldn't go to prison because they were women, that would constitute sex-based discrimination. If single fathers couldn't change their infants' diapers because only women's restrooms had diaper-changing tables, that would also constitute sex-based discrimination. (BTW, the threat of civil sex-discrimination lawsuits has actually been used to get diaper changing tables installed in men's restrooms. As far as I know none of these cases has gone to court; public pressure on behalf of fathers proved sufficient.)

How is it that sex-based distinctions seem to survive in those areas without falling into the same legal conundrum you paint for marriage?

In the case of family law, a suitable case hasn't yet come before the court. (Father's rights groups, you have your opening at last.) In the case of prisons, you haven't proven that equal access to incarceration has been denied to persons on the basis of sex -- as marriage has to same-sex couples.

The problem with Massachusetts ERA advocates is that when they claimed an ERA would not allow same-sex marriage, they failed to see marriage as a legal institution. Many Gay people make this mistake as well.

Posted by: Tim Hulsey on February 10, 2004 5:11 PM

Almost forgot ...

That 5% figure came from a news story (last week, I think) about the issues Mass. voters thought were important. Gay marriage was surprisingly low on the list -- after the budget, education, crime, etc. So even though the people of Mass. are pretty evenly split on the issue (with a small majority in favor of same-sex marriage), the general view seems to be that state legislators have far more important things to do than froth and fume over it.

Posted by: Tim Hulsey on February 10, 2004 5:24 PM

Hey Tim:

I ain't convinced by your arguments, but at the very least I think we understand where both of us are coming from. What the heck, let's buy ourselves a beer and congratulate ourselves on our erudition and eloquence. And three cheers for gay marriage--of all the pieces of social engineering put in place by judicial over-reaching, undoubtedly the most benign.

Now, (ahem) about affirmative action...

Posted by: Friedrich von Blowhard on February 10, 2004 6:13 PM

The control on the judicial branch is supposed to be impeachment. It has just fallen into disuse.

Posted by: Sebastian Holsclaw on February 11, 2004 3:09 AM

"In our society change is supposed to come through the democratic branches. All of the legitimate agents for change in a Constitutional system work through some sort of democratic process. A judge's duty is to identify duly authorized law and apply it. Policy changes are supposed to come through the legislature.

If I may get all Friedrichish here, show me where in the Constitution it says that."

I wish I had more time tonight, but the short version is that the Constitution says that in the way it set up the judiciary coupled with the understanding of judges did at the time. They were understood to be 'backward' looking. The would take the historical facts of an individual case and apply the historic understanding of the underlying law. That was what judges did. So when you say in article III that: "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State; (See Note 10)--between Citizens of different States, --between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects...", you use the words 'judicial power' to describe that. It isn't legislative power, dictatorial power, monarchical power, or electric power, it is judicial power. It is the power of judging a case as it applys to the underlying law. The power to change the underlying law is a legislative power. The fact that we have to spend time talking about the differnce shows how much of the legislative power the judiciary has taken to itself.

Posted by: Sebastian Holsclaw on February 11, 2004 3:19 AM

I am still for gay marriage, but I am more and more against the other people who are for it. Surely Tim is playing dumb rather than actually being dumb when he systematically refuses to understand Friedrich's point. The basic argument is that the language of the state ERA does not say that sexual distinctions are to be eschewed in the law; it says that they may not be used to discriminate. Under pre-existing law, gay marriage prohibitions did not constitute sex discrimination for the obvious reason that they applied to both men and women. The ERA was passed under the claim that it would redress discrimination against one sex, not that it would protect sexual orientations.The entire context ( or pretext, given the court's latest interpretation) of the political debate was that the ERA would NOT do precisely what the court is doing now. If a writtten constitution is meant to be a structural constraint on the behavior of legislators and judges, then clear understandings of this kind at the time of passage cannot simply be waved away. Otherwise, the constitution is a con game, rather than a check on arbitrary power.

Posted by: steve on February 12, 2004 10:56 PM

I understand Friedrich's point quite well. It's not relevant to this case, but I understand it. (Since F. lives in California and I live way out in rural Virginia, we'll have to settle for a virtual beer.) When the law says "No," the court can't say "Maybe."

The ERA was passed under the claim that it would redress discrimination against one sex, not that it would protect sexual orientations.

No one can check the sexual orientation of same-sex couples. It is possible that some of the participants in these marriages may be Straight or Bi, just as some participants in opposite-sex marriages turn out to be Bi or Gay. In terms of a strictly legal argument, sexual orientation has nothing to do with this particular case.

Fact #1: The state of Massachusetts has denied same-sex couples marriage licenses because both participants were of a particular sex, not of a particular sexual orientation.

Fact #2: Article CVI of the Massachusetts Constitution -- which I've quoted above -- states that the state cannot deny legal equality to a person because of his/her sex.

Therefore: The high court ruled that the state of Massachusetts acted in a manner contrary to its own Constitution by denying same-sex couples marriage licenses, because their decision was based solely on the sex of the individuals involved.

Loophole: If the high court could establish that these couples weren't "persons" under the law -- in short, that they did not conform to the "reasonable man" standard (another common-law innovation) -- then Article CVI would not necessarily apply to them. But such a decision would constitute real judicial activism, and have far-reaching effects.

Perhaps the authors of Massachusetts' ERA honestly believed that Gays and Lesbians were not in compliance with the "reasonable man" standard, just as Thomas Jefferson believed that Black slaves were not. Or perhaps they believed marriage was entirely a religious institution, and that same-sex couples would never marry in a church. Both of these assumptions have been proven wrong.

Posted by: Tim Hulsey on February 14, 2004 4:13 PM

Tim is still playing dumb. It doesn't matter whether the court knows the sexual orientation of the parties. The point is still that the old regime was nondiscriminatory on the basis of sex because NEITHER sex was allowed to engage in single-sex marriage. Period. Fact #1 therefore should have had no legal weight in terms of sex discrimination. Fact #2 is equally irrelevant because no man was being allowed to do something that a woman couldn't or vice versa. The key in this argument is that when the ERA was passed everybody defined "what a woman couldn't" do as "marry any woman" rather than "marry this particular man." Tim could do a better job of advancing his sophistry if he analogized to miscegenation--that WAS held to be racially discriminatory even though it applied to both groups, blacks and whites. The problem with this analogy, of course, is that the discrimination in that case was held to be against blacks as a whole, not merely against the subset of blacks who wanted to marry whites, whereas with gay marriage prohibition the discrimination is not against men as a whole or women as a whole but only against gays and lesbians.

Posted by: steve on February 16, 2004 9:46 PM

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