Or: Why Mike Huckabee should have flunked 9th grade.
The possibility that the Supreme Court might soon rule in favor of same-sex marriage, resulting in its legality in all 50 states, is causing a certain amount of panic on the Religious Right. In response, presidential candidates whose campaigns hope to exploit that panic have been spreading dangerously ignorant ideas about the Constitution and the judicial branch of government. And, as ignorant people often do, they’ve been claiming that everyone else is ignorant, while they alone grasp the true nature of the Founders’ vision.
For example, when NewsMax asked Dr. Ben Carson about same-sex marriage, he responded:
First of all, we have to understand how the Constitution works. The president is required to carry out the laws of the land, the laws of the land come from the legislative branch. So if the legislative branch creates a law or changes a law, the executive branch has a responsibly to carry it out. It doesn’t say they have the responsibility to carry out a judicial law.
And Mike Huckabee presented a similar perspective in more detail:
Getting a decision from the Court is not tantamount to saying, “That settles it. It’s the law of the land.” And when I hear people say that I just cringe, and I’m thinking: “How many people passed 9th-grade civics?” This is not that complicated.
There are three branches of government, not one. We don’t like it if the executive branch overreaches, and pretends that it can act in indifference to the other two. And neither can we sit back and allow the Court — one branch of government — to overrule the other two.
And so when a court rules that same-sex marriage is OK, it doesn’t mean that the next day marriage licenses should be issued for same-sex couples. It simply means that if the legislature agrees with that court decision, and the representatives of the people, the elected officials, if they then put this into legislation, and it is signed and enforced by the executive branch, then you have same-sex marriage. But until those other two branches act, what you have is a court opinion and nothing else.
Clearly, Governor Huckabee’s 9th-grade civics teacher has a lot to answer for, because he seriously misunderstands how our system of government works. So let’s back up and answer a simple civics question: How does the Supreme Court come to have the power to say what laws mean and even to determine that some of them are unconstitutional?
Where judicial review comes from. People who dislike particular court rulings often imagine that this power of judicial review wasn’t in the Founders’ original vision at all; somewhere along the line the Supreme Court just usurped it. But in fact the Founders foresaw judicial review and approved.
If you want to know what the Founders thought the Constitution meant, one of the best places to look is in The Federalist, a series of essays Alexander Hamilton, James Madison, and John Jay wrote to explain the new Constitution and encourage states to ratify it. In Federalist #78, dated June 14, 1788, Hamilton wrote:
The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. … [W]henever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.
So where does the power of judicial review come from? From the Founders. It goes all the way back.
Without judicial review, our constitutional rights are meaningless. This idea is easiest to explain through a hypothetical: Imagine that a Clinton landslide in 2016 sweeps in large Democratic majorities in both houses of Congress. When the new Congress takes office in January, 2017, it passes this one-sentence law:
Whereas Ben Carson and Mike Huckabee are pernicious individuals whose continued liberty is detrimental to well-informed public discourse, they shall be imprisoned in the federal penitentiary in Leavenworth, Kansas for a period of ten years.
President Hillary Clinton signs the law. Federal agents arrest Carson and Huckabee and drag them to Leavenworth. What happens next?
First, notice that even though the Carson-Huckabee Imprisonment Act of 2017 went through the process the Constitution lays out for passing a law, it is still blatantly unconstitutional. In technical terms it’s a bill of attainder, which the Constitution specifically forbids in Article I, Section 9:
No Bill of Attainder or ex post facto Law shall be passed.
But how does that fact do Carson and Huckabee any good? They can complain to the agents who arrest them. They can complain to their Leavenworth guards and cell mates. But so what? “Yeah, yeah, join the club,” they’ll be told. “Everybody in here is innocent.”
Short of counting on friends with guns to break them out, there is only one effective thing they can do: file a writ of habeas corpus, (another Article I right). In other words, Carson and Huckabee can make their jailers justify themselves before a judge. That judge then has the power to say that the Carson-Huckabee Imprisonment Act is unconstitutional. And the very instant that decision comes down, they have to be released.
Notice what doesn’t happen here: There is no “judicial law”, no Carson-Huckabee Release Act that the judge has to pass. And the judge’s ruling is not a suggestion that the other two branches might want to revise or repeal the Carson-Huckabee Imprisonment Act. Carson and Huckabee don’t have “a court opinion and nothing else”. They have their freedom.
If they didn’t, then the Constitution’s protection against bills of attainder would be meaningless. Congress could just refuse to pass a Release Act, or President Clinton could veto it, or just not get around to enforcing it. And Ben and Mike would sit in jail, no matter what rights they had in theory.
All our rights are like that. If you can’t bring your case before a judge who has the power to tell the other branches “Stop doing that right now!”, then in practical terms you don’t have any rights.
Interpretation. I intentionally made that last example simple: a one-line law that stood on its own and did something obviously wrong. But lawmakers with bad intentions are usually sneakier than that.
A much more likely scenario is that Carson-Huckabee imprisonment would be a page of legalese somewhere in the middle of a 300-page bill that built a dam and changed food-stamp requirements and made Al Sharpton’s birthday a national holiday. It wouldn’t mention Carson or Huckabee by name; it would just give the administration power to imprison people who fit some abstract description. Of the people described, only Carson and Huckabee would be worth bothering to arrest. Or maybe 100 people would get arrested, of whom 98 really would be dangerous to the public.
However it shook out, the effect would be the same: Ben and Mike would find themselves in Leavenworth without a trial. But now their habeas corpus case is more complicated, because it isn’t obvious that the Omnibus Reconciliation Act of 2017 — which contains that one significant page — is a bill of attainder. Somebody has to interpret it, and weigh its effects against the abstract definition of a bill of attainder, or against the 14th Amendment’s abstract guarantee of “due process of law”. Exactly how much “process of law” were Carson and Huckabee “due”, and did they receive it? Lawyers from the Clinton Justice Department might concoct some very slick arguments saying that they did.
And that brings us back to Hamilton: “The interpretation of the laws is the proper and peculiar province of the courts.” If the courts are prevented from doing that job, then a clever lawmaker or a hostile administration can take away your rights.
Change. Another way my example is simple is that “bill of attainder” means pretty much the same thing today as it did when the Constitution was written in 1787: a law that sends people to prison without a trial. But it’s reasonably certain that the Constitutional Convention of 1787 had no idea it might be creating a right for same-sex couples to marry, and neither did the people who drafted and passed and ratified the 14th Amendment after the Civil War.
So how can a judge “find” that right in the Constitution today? Did the Founders and subsequent amendment-drafters not understand what they were writing? Were all previous judges stupid not to see this right that judges see today? Or if you don’t believe those absurd things, how is marriage equality not a total abuse of the power of judicial review?
The answer is that even when the text of a law doesn’t change, the practical meaning of that law can change as the world changes around it. Today we have lots of “constitutional” rights that the Founders could not have imagined. When they wrote the Second Amendment, they weren’t picturing AR-15s. When they guaranteed “freedom of the press”, they weren’t thinking about blogs. The Fourth Amendment protection against “unreasonable searches and seizures” didn’t originally have anything to do with the pictures on your smart phone, or the possibility that police might see through your walls with infrared devices.
Today, those kinds of issues come up all the time, along with examples of extended rights we probably shouldn’t have. (If a nuclear weapon can be shrunk down to a suitcase that I can carry, should I have a right to “bear” those “arms”?) In a perfect world, maybe we’d be constantly updating the Constitution to make this stuff clear. But judges don’t get to live in that perfect world; they have to decide the cases that come before them on the basis of the laws on the books.
One solution would be for a court to throw up its hands whenever a case involved something lawmakers hadn’t foreseen. (“How should I know what to do with bazookas?”) In an era with fast technological change and a dysfunctional Congress, increasingly large parts of life would move outside the law. So you’d have the right to bear the same kind of ball-and-powder weapons the Minutemen used, or to print whatever you wanted on a press like Ben Franklin’s. Beyond that, though, your rights would start to evaporate.
Instead, in the American legal tradition, judges read the laws as embodiments of principles, which can then be abstracted and applied to new situations. You really wouldn’t want it the other way.
Marriage equality. In the case of same-sex marriage, the main thing that has changed since the Founding era isn’t the Supreme Court, it’s opposite-sex marriage. In 1789, any gay or lesbian couple claiming they had a right to marry would have been laughed out of John Jay’s Supreme Court, and rightfully so.
That’s because in a truly “traditional” marriage husband and wife are legally distinct roles that can only be filled by people of the appropriate gender. As Blackstone’s authoritative Commentaries on the Laws of England put it in 1765:
By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband. … The husband also, by the old law, might give his wife moderate correction. For, as he is to answer for her misbehaviour, the law thought it reasonable to intrust him with this power of restraining her, by domestic chastisement, in the same moderation that a man is allowed to correct his apprentices or children; for whom the master or parent is also liable in some cases to answer.
Only the husband could own property or sign contracts. No wife could enter into employment without her husband’s approval. There was also no concept of marital rape; for all practical purposes, a wife’s body was her husband’s property, so if he chose to use that property in the ways that husbands typically did, the law saw no issue.
(BTW: Anybody who uses the phrase “traditional marriage” and doesn’t mean what I just described is playing games with words. A marriage of spouses equal under the law is not at all “traditional”, even if the spouses are of opposite genders.)
In that legal environment, a same-sex couple trying to marry would be doing something absurd. Who would be the husband and who the wife? Whose contractual agreements would be valid? Which spouse could discipline the other? And in an era when only men could vote, wouldn’t democracy be undermined if some households had two votes and others none? Nonsense!
But all those circumstances changed. As Justice Ginsburg framed the issue last month:
Marriage was a relationship of a dominant male to a subordinate female. That ended as a result of this court’s decision in 1982 when Louisiana’s Head and Master Rule was struck down … Would that be a choice that states should [still] be allowed to have? To cling to marriage the way it once was?
In current law, the roles of husband and wife are virtually interchangeable. There continue to be social and cultural differences, and many religions still encourage husbands and wives to take on distinct roles. But nothing in the law forces them to do so.
So under the law as it currently exists, same-sex marriage is not absurd, and it exists without causing any apparent problems in about half the country, as well as in several other countries.
Equal protection. In addition to “due process”, the 14th Amendment guarantees each American “the equal protection of the laws”. In practice, that phrase has been interpreted to mean that if the government treats some people differently than others, it has to have a good reason. The more significant the discrimination, the weightier the reason needs to be.
That’s why laws that provide a marriage option to opposite-sex couples but deny it to same-sex couples are in trouble: because it’s increasingly hard to say what legitimate reason the government might have for that discrimination. Salon summarized Justice Breyer‘s analysis like this:
When states try to justify denying same-sex couples the right to marry, “the answer we get is, well, people have always done it,” observed Breyer. That answer won’t do, because it was used to justify racial segregation. “Or, two, because certain religious groups do think it’s a sin.” That can’t justify a law either. “And then when I look for reasons three, four and five, I don’t find them. What are they?”
So the claim that gays and lesbians want to “redefine marriage” has it exactly backwards. During the last century-and-a-half, marriage has already been redefined. And in marriage as it exists today — rather than during the Revolution or the Civil War — what’s our justification for refusing its advantages to same-sex couples?
In short, the Constitution and the 14th Amendment haven’t changed, but the world has changed around them. Nor is the Supreme Court being asked to “redefine marriage” or to pass a “judicial law” legalizing it. That’s not what a court is for. But we do need the Court to tell us what “equal protection” is going to mean in the context of today’s marriage laws.
That’s a use of judicial power I think Alexander Hamilton would understand.