The continuing relevance of Stephen A. Douglas: "Popular sovereignty," federalism, and moral relativism"

Consider the following passages from the anguished dissents filed by Justices Scalia and Alito in Obergefell:


Scalia:  “[t]he substance of today’s decree is not of immense personal importance to me. The law can recognize as marriage whatever sexual attachments and living arrangements it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance. Those civil consequences—and the public approval that conferring the name of marriage evidences—can perhaps have adverse social effects, but no more adverse than the effects of many other controversial laws. So it is not of special importance to me what the law says about marriage "

Alito: "The system of federalism established by our Constitution provides a way for people with different beliefs to live together in a single nation. If the issue of same-sex marriage had been left to the people of the States, it is likely that some States would recognize same-sex marriage and others would not…. The majority today makes that impossible. By imposing its own views on the entire country, the majority facilitates the marginalization of the many Americans who have traditional ideas."

It's especially interesting, I think, that Alito echoes Justice Holmes in Lochner that the Constitution was made for people "with fundamentally different views."  We know that Holmes had no patience at all with any theories of "natural law" or any other substantive notion of justice.  His conception of law had literally nothing to do with justice and everything to do with recognizing sovereign authority.  There is, I think, much to be said for Holmes's view, but, to say the least, it's a bit odd to it reflected in the opinions of two of the Justices who are viewed as the most "serious Catholics" on the Court.  And if there's one thing we thought we knew about Catholicism, it is that it professes a robust view of natural law and does not recognize the complete separation of law and morals. (A famous article written by a Catholic law professor connected "Hobbes, Holmes, and Hitler," for example.)  

Federalism is also often praised not only for allowing little islands of experimentation, but also, as a practical matter, as a means of acknowledging the diverse views we have about matters of political or social morality and allowing state A to adopt a very different answer to such questions than state B.  Again, there's much to said for this as a means for maintaining social peace, albeit at the cost of accepting the maintenance of what many might consider significant injustice in some of the states.

But note well that what Scalia and Alito are doing is really reviving the theory of "popular sovereignty" best identified with the Little Giant Sen. Stephen A. Douglas with regard to the issue of slavery.  Unlike the hotheaded Lincoln, who noted that "I have always hated slavery, I think as much as any Abolitionist," Douglas professed himself indifferent to the moral critique of slavery.  Perhaps he even would have said that it was "not of immense personal importance to me."  What this translated into was the desirability of letting each state, as it joined the Union, make its own decision as to slavery or freedom.  Somewhat more complicated was the right of the pre-state territory to make its own decision, in territorial legislatures, to welcome slaveowners.  Douglas, to his political detriment, argued that they could place stumbling blocks in the way of the slaveowners, but, if they chose not to, that was all right too.  The important thing was to recognize the fundamentally "federal" nature of the Union, a collection of people with decidedly different views about the legitimacy of owning other human beings as chattels, and to allow that decision to be made locally rather than on a one-size-fits-all national basis.  


Obviously we did decide, after 750,000 people died, that one size should indeed fit all, and the Thirteenth Amendment was added to the Constitution, luckily for Scalia and Alito. In the absence of the Amendment, and given the incontrovertible fact that the 1787 Constitution did indeed have elements of "a Covenant with Death and an Agreement with Hell," could Alito or Scalia possibly have denied the right of a "sovereign state" (a term much found in recent opinions of Scalia--and, for that matter, Anthony Kennedy when he wears his pro-federalism hat) to continue to maintain that "traditional" system of regulating the labor force in many of the states?  One might, of course, ask the same question of Chief Justice Roberts, given his reliance on (and some would say creation of) a doctrine of "state equality in Shelby County that gives the green light to Republican legislatures (whether or not flying the Confederate flag) who wish to do what they can to suppress the vote of racial and ethnic minorities.  

This is not meant as (merely) a snarky point.  As I have written on other occasions, the notion of "popular sovereignty" is immensely important, under-analyzed, and at one and the same time very attractive and a recipe for injustice and even catastrophe.  But it does strike me that, for better or worse, Kennedy is truly taking the Lincolnian posture and Scalia and Alito the position embraced by Douglas and then, in an important variant, by Holmes.  I.e., we live in a radically pluralistic world where we simply do not agree that there is a "fact of the matter" as to the justice or injustice of slavery or the legal rights to be accorded gays and lesbians.  And the task of politicians, including judges, is to realize that there is no agreement on fundamentals and thus to try to design some kind of a modus vivendi rather than a genuinely just political order.

What (if anything) does it say that this view is presupposed, even if not explicitly set out, by two strongly Catholic Justices?  (It is now fair game, I think, to mention the demographics of the Court given that Scalia himself took such pains to mention them.)  One could, of course, ascribe it to sheer opportunism.  Take any port in a storm, and federalism, with its "diversity" and entailed moral relativism, is convenient in the case of same sex marriage or abortion.  Certainly political liberals, over the past decade, have been speaking up for federalism with regard to the rights of states to embrace same-sex marriage and denouncing DOMA.  And Robert George, in his excellent Making Men Moral, noted that there is a "pragmatic" strain even in classical Catholic thought that a political state should indeed move only with "all deliberate speed" when imposition of what is in fact the one true understanding of morality would generate too much resistance. 

 But, of course, one could offer the same kind of defense of Douglas, who was altogether correct in his basic insight that whether or not the "house divided" could stand, it was certainly the case that it would not withstand--except at the cost of 750,000 lives--an attempt to impose a single national solution.  (I put to one side, for these purposes, the fact that Lincoln himself was Douglasian in his emphasis that he was not at all opposed, as a political/legal matter, to recognizing the validity of slavery in the states where it already existed.)   

For what it's worth, I taught my students in April that there was no real doubt as to how the case would come out, not least because of the extraordinarily slipshod way the Court handed the decisions below in refusing to stay them.  It was literally incredible to believe that there weren't always five votes to nationalize same-sex marriage when the Court felt it appropriate to do so.  So the only interesting question was really why now (and, of course, exactly what Kennedy would say, given that one could also predict that it would be he writing the opinion).  Putting to one side that Judge Sutton and the Sixth Circuit created an embarrassing conflict in the circuits that was otherwise not present, I emphasized to my class the key fact that public opinion had moved so fast on the issue, that many more Americans today support the right to same-sex marriage than supported inter-racial marriage at the time of Loving v. Virginia.  The Court is not really "leading" the country, but, rather, following what has become the national majority view and decided that it's now safe to impose on "outliers." 

 But what if the public opinion polls were different?  What if there really were good reason to believe that the opponents would not accept defeat more-or-less graciously, after some predictable harrumphing about judicial overreach, and instead would engage in "massive resistance" (whatever that might mean in this context, which, frankly, is hard to figure out, unlike school desegregation where "white flight" and the rise of segregation academies was an all too possible reaction, not to mention simply shutting down the public schools)?  Does the support for the decision rest on the pragmatic fact that the Court is basically getting on the last car of the train that has already left the station?  Or do we think that the Court should have done this in, say, 2003, when Scalia accurately surmised that if "logic" does have anything to do with the law, then Lawrence would inexorably lead to same-sex marriage?  Lincoln, after all, didn't support the repeal of the Fugitive Slave Law until 1864, and he was offering compensated emancipation into 1863, at least for the slave states that had remained loyal to the Union.  (And, notably, the Emancipation Proclamation, as a legal matter, did not apply to those states at all.)   Was the Court right to wait until now (which entails that the "liberals" were righ, as a political matter,t to join in Roberts's indefensible decision on standing in Perry), or should Kennedy have been able to write his opinion no later than 2013?