Bench Memos

Marriage, Dred Scott, and the Fog of Unreason

Last week in this space, I referred to the trend of same-sex marriage rulings, now unfortunately sanctioned-by-omission by the Supreme Court, as a “slow-motion Dred Scott.”  This got a rise out of people who professed to be offended—which did not surprise me since so many people have made being offended an actual career choice.  So I later explained what I meant by it.

The result?  My own Two Minutes Hate.  My Twitter feed exploded with touching expressions of regard.  Someone pronounced me “A**hole of the Day” (considering the folks responsible, I’d be happy to own it for a whole week).  I heard from an old friend 500 miles away that I even earned 10 seconds of infamy on “The Colbert Report.”   (For more on Mr. Colbert, see this.)

I was away from any access to Twitter for the better part of a day, and when I returned to my desk I had actual work to do and people to talk to (the expression “social media” does not do justice to the negative impact that obsession with them has on real social life).  So I’ll just make some postscript observations here, now that the detritus of people’s heads exploding has settled to earth.

I noticed that no one who knows anything about constitutional law or the Dred Scott case had any real criticism to offer of what I’d said.  That’s because among such people, comparisons like the one I’d made are a nickel a dozen.  Dred Scott is the paradigm case of judicial “statesmanship” turned bad, with the Supreme Court defying legitimate norms of the rule of law and limits on its own power, while foisting a wholly fictitious account of constitutional meaning on a country deeply divided over the issue that the Court decided.  It also occasioned one of the most celebrated critiques of judicial supremacy in our history, from our greatest statesman.  Aside from that last feature—unfortunately—the episode has striking parallels to our present situation.

Did I therefore mean to say that same-sex marriage is the moral equivalent of slavery?  Only someone who would struggle to earn a D in a basic logic course would draw that conclusion.  I do indeed think state recognition of same-sex marriage is morally objectionable, as do roughly half of all Americans—maybe considerably more than half, but now the courts in most of the country have ruled out any possibility of inquiring into that for purposes of democratic decision-making.  None of us, so far as I know, thinks it is as bad as treating human beings like chattel property.  There, now, does everyone feel better?

Could I have compared same-sex marriage rulings to Roe v. Wade?  Sure, but for 40 years it has been routine to compare Roe to Dred Scott, and rightly so.  Roe relied on the fraudulent doctrine of substantive due process, which is widely understood to have made its first appearance in Dred Scott.  Why cite the sequel when you can cite the original?  Besides, as Ed Whelan pointed out on Twitter, comparing the marriage cases to Roe would not have much purchase with folks who think there’s a constitutional “women’s right to choose”—who largely coincide with same-sex marriage advocates.

Let’s see, I could have compared the marriage rulings to Lochner v. New York.  That too is a notorious substantive due process case, which for over a century has been anathema to liberals who claim (sometimes) to be worried about judicial over-reaching.  Would people infer that I thought same-sex marriage is the moral equivalent of “progressive” interferences with the terms of employment arrangements in bakeries?  I didn’t think so.

Or I could have compared today’s cases to Griswold v. Connecticut, in which the Court strained not to appear to be doing what it was really doing all over again through the due process clause—making a policy judgment instead of a legitimate constitutional decision.  Then people could have complained that I thought same-sex marriage is “just as bad as” . . . married men and women using condoms.  I can feel the waves of loathing from here.

The bad thing about Twitter’s limitations is that arguments can’t be much developed in just 140 characters.  The worse thing about Twitter is that lots of people think this is an excuse for retiring permanently from the business of making arguments.  Judging from the performances of American courts in the last few years, the same-sex marriage issue is having the same effect on many judges, even when they have 140 pages to play with.

 

 

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