One unfortunate behavior trait (or is it a personality disorder?) of liberals that most gets under the skin of conservatives, and thus contributes to the downward-spiraling debasement of much contemporary political discourse, is their easy and habitual assumption of moral superiority. Because they assume that their positions distill the essence of good sense and moderation, a corollary is the assumption that those who disagree are outside the mainstream, extreme (make that “rightwingextremist,” which has become one word, the way “damnyankee” was when and where I grew up), and, worst cut of all to secular worshippers, “sectarian.” All of these traits, and more, are on display in an OpEd in today’s Washington Post by David Moats, editorial page editor of the Rutland (Vermont) Herald and author of the forthcoming book, Civil Wars: A Battle for Gay Marriage.
I am not offended by the substance of Moats’ argument, which is a conventional defense of “judicial activism.” Because we have a living Constitution and “changing times expose injustice” unrecognized by earlier generations, he argues, “Adapting Liberty To The Times” is the proper and permanent job of the courts. Nor do I disagree with everything Moats says in defense of civil unions and gay marriage. Nevertheless, I find the tone and tenor of his argument almost insufferable.
This tone and tenor is on display in what Moats says of the civil union debate in Vermont:
The state came through the controversy with a law that passed constitutional muster because of the steady leadership of politicians determined not to let the moral claims of diverse outraged sectarian groups deter them from fulfilling their constitutional obligation. As leaders of a secular state, that obligation was to guarantee equal rights for all.
….
In Vermont politicians learned that, faced with the constitutional imperative to guarantee equal rights, they could never appease the extreme right….
There was no reasoned or reasonable objection to civil unions; all opponents were “outraged.” There was no secular opposition; all opponents were “sectarian.” The views and values of the steady and responsible political leaders played no role in their decisions; they favored civil unions because the “constitutional imperative” of their “constitutional obligation” left them no choice. “Equal rights” is susceptible to only one interpretation, that of the steady and responsible Vermont politicians and their supporters.
This perspective has no room for people who might actually favor civil unions or gay marriage but who believe they are not commanded by the state or federal constitutions. It implies, unless it in effect asserts, that all political leaders who do not try to enact civil unions or gay marriage are gutless cowards shirking their constitutional obligations.
But like a moth drawn to a flame, Moats can never fly far from his fixation on the secular vs. the “sectarian.”
The opponents of gay marriage have only the frozen hand of tradition or sectarian claims without legal standing in a secular state with which to refuse full equality. No wonder they are so desperate.
Pointing to the recent Episcopal decision to approve a gay bishop in a neighboring New England state, one could reply, with as much logic and perhaps more fact, that the demand for gay marriage is at least as “sectarian” as the opposition to it. But this would be irrelevant, since what liberals mean by “sectarian” is simply any argument with which they disagree. They did not object to the prevalence of religious sects in the abolitionist movement, in the civil rights movement, in the opposition to the war in Vietnam, nor do they view it as “sectarian” when religious groups now oppose our actions in Iraq.
Indeed, there may well be no more sectarian sect on the scene now than today’s secular left, but its arguments are not invalid or out of bounds by virtue of their sectarianism. Our Constitution may indeed be “living” in some important respects, and according to Lawrence it does indeed bar at least some forms of discrimination against gays. It is unlikely, however, that Moats-like moralistic name calling will advance that argument very far.
With friends like Moats, Gov. Dean may not need many enemies.
The Constitution is as “living” as human nature is malleable. I am disappointed that you believe in a “living” Constitution in “some important respects.” With this statement you are not only on the slippery slope, you are cascading down it out of control. If you don’t agree with the clear meaning of the Constitution or are unhappy with some of its ambiguities, then you may either amend it in accordance with its rules or overthrow it. You may not in good conscience or good faith simply choose to regard it as a “living” thing (at the mercy of the whim-of-the-moment five justice majority of the Supreme Court) in order to rewrite the document in service of your will.
Stu
Stu, I don’t disagree with you quite as much as your comment (or perhaps my phrasing) suggests. I did, after all, qualify the livingness of the Con. by saying that it “may” be living “in some important respects,” which is not quite the affirmation of its life made by those you really and truly disagree with.
Well, you may ask, putting the “may” aside as a rhetorical fig leaf, in what respects? Simply the fact that the Con. is a text that must be interpreted to be applied. That fact alone ensures that its meaning cannot be fixed with absolute certainty. Now we may lament that fact, but our lamentation doesn’t change it.
You are of course right that the interpretiveness (is that a word?) of the Con., as opposed to an impossible fixedness, means that we are indeed on a slope that is slippery. And it is also true that many of our fellow interpreters rejoice in that fact, happily sliding from here to there and back again with the prevailing faddish winds. That unseemly result, however, is not necessary, for we are not without skills and tools to secure our footing or, when movement is necessary (who among us now believes that it would be legitimate for a state to establish a church, as the framers certainly did?), steady our course. We have intellectual pitons, ropes, pulleys, hammers, harnesses, and other devices that help us rappel the apparently sheer face in the form of history and other analytical and interpretive skills and methods that allow us to say with some confidence that some interpretations are better than others, and that still others are completely off the wall.
One final word of caution. Those of us who reject the instrumentalism of many liberals, i.e., those of us who do not believe the Con. means whatever we want it mean (or, in its Dworkinian version, conforms perfectly to our view of morality), properly reject an interpretive method that starts with our desired objective and reads, backwards as it were, a justification for it into the text. Still, it is at least worth acknowledging that those of us who believe colorblind (and religion-blind) neutrality is a bedrock constitutional value cannot support that principle by pointing to the text alone of the Con — “equal protection of the laws” is too vague and open ended — and certainly not to the actual intent of either the original framers/ratifiers or the framers/ratifiers of the 14th Amendment.
My point is that judicial activism–properly understood, I think, primarily as the judicial usurpation of legislative power and prerogatives–depends on the cliche of a “living” Constitution. Your use of that particular word just set me off–you are usually so careful in your word choice that it wasn’t reasonable to assume you meant something benign. (Besides, your good manners sometimes lead you to sentimental expression at odds with what I have come to know you believe unconditionally.)
And it isn’t just the slope that is slippery. Now we find that the firm ground of the document’s actual words is no guarantee against judicial mischief. Surely, there can be no more unambiguous statement in the entire document than that Congress shall make no laws abridging the freedom of speech. Well, there you go. That’s the problem with a “living” document in this age. It is continually facing the threat of being reborn in the exercise of illegitimate power to serve the interests of those exercising that power.
As for colorblindness, I side with Justice Harlan. Perhaps I am simpleminded, but I truly do not believe that one can read the Civil War amendments, particularly with a relatively intimate knowledge of their context, and reach any other conclusion but the one he recited in his Plessy dissent.
On this point reasonable men and women cannot disagree. Unless of course there is something more at work than textual interpretation–as there seems to be more and more of these days. We had Dred Scott in the 1850s, then Plessy 40 years later. Although I have many quibbles with the destruction of the Commerce Clause in the 1930’s, the next truly egregious, far-reaching SCt abomination was Roe 75 years after Plessy.
The trend is accelerating alarmingly. This year alone we have had Grutter, the campaign finance ruling and the sodomy ruling. Agree or disagree on the merits, those were ungrounded in the Constitution or required rewriting the text to give it a meaning opposite of its plain meaning or were simply naked exercises of federal judicial power at the expense of state legislative power.
I know we are on the same side (even though you are mistaken from time to time.) You may not be religious in a sectarian sense–and neither am I–but you are doing God’s work here and you are kind enough to be charitable about my picking at you from time to time.
All the best to you and yours. Happy New Year.
Stu
Stu, I wish all my critics were so generous. Believe me, I would like to agree with you more than I do, but the necessity of interpretation is unavoidable. Take your example of the totally unambiguous bar on Congress abridging freedom of speech. Maybe you have a clear picture of precisely what forms of regulation would constitute “abridging” and which wouldn’t, but I don’t. Also, libel and slander are speech but not part of the “freedom of speech” the bar bars. And that bar in any event bars only Congress. What about the president? A state governor’s executive order? Etc.
I’m also sorry to say that, as a matter of histore and “original intent,” Justice Harlan was simply wrong in Plessy. Morally he was right. And a good argument can be made that legally he was right. But that legal argument cannot be based on text (“equal protection” is too vague and can allow “separate but equal”) or original intent.
I wish that weren’t so. I wish Charles Sumner and Thaddeus Stevens had prevailed in the debate over the 14th Amendment. But wishing doesn’t make it so. I can’t recommend too highly a book called THE COLORBLIND CONSTITUTION by Andrew Kull, who also laments that the colorblind standard lost out in the Reconstruction Congress that wrote the 14th.
It is of course highly ironical that conservatives like you and I identify with Justice Harlan and the Radical Republicans, while the current argument for racial preference is nothing more than a reprise of the conservative arguments against Sumner and Stevens and the majority opinion in Plessy.