an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Arguments from the Future-- A New Modality of Constitutional Argument
At a meeting of the Supreme Court Clinic this evening, we discussed the upcoming arguments in the Marriage Cases. We considered what arguments would likely weigh most heavily with the Justices.
I noted that one of the strongest influences on the Justices, and especially Justice Kennedy, was how they believed their decisions would look in in ten or twenty year's time. Would they be seen as defenders of liberty and equality, or would they be viewed in hindsight as defenders of prejudice, fighting against the tide of progress?
Mark Tushnet has pointed out to me that he believes that someone like Anthony Kennedy is likely to vote for gay rights in the Marriage Cases--or at least not to vote on the merits against gay rights--because he doesn't want to be remembered as being like Henry Billings Brown, the author of Plessy v. Ferguson. Kennedy would rather be remembered as being like Earl Warren, the author of Brown v. Board of Education, which effectively overruled Plessy.
Justice Brown probably thought he was being perfectly reasonable in Plessy-- in fact you might even argue that his views were completely unremarkable from the standpoint of 1896-- but he was simply on the wrong side of history. And Justice Kennedy doesn't want to be on the wrong side of history, especially when it comes to gay rights.
People often think about the future when they make moral choices in the present, not simply in terms of the likely good or bad consequences of their decisions, but in terms of how they imagine their choices will look to others later on. During the class, I pointed out that it would be very hard to write an opinion on the merits (as opposed to an opinion on standing grounds) upholding DOMA or state bans on same-sex marriage, because of the way the opinion might read 20 years later. Even if what you said seemed perfectly reasonable now, it might seem cruel, insensitive, or bigoted later on. As an example, I offered Justice White's 1986 opinion in Bowers v. Hardwick. Like the New Dealer he was, Justice White did his best to explain that social and economic questions should be left to legislatures, not to courts. But he also said that that "to claim that a right to engage in [homosexual] conduct is `deeply rooted in this Nation's history and tradition' or `implicit in the concept of ordered liberty' is, at best, facetious." In other words, he was saying that it's ridiculous to think that gay people would have a fundamental right not to be imprisoned for having sex with the people they love. When you put it that way, it sounds pretty awful.
You can see that, if history goes as you expect it will, some opinions are going to look really bad later on. Try writing the dissent in Brown v. Board of Education. At some point in the opinion, you will have to explain why it is reasonable for states to keep the races separate. Mike Seidman has offered an imaginary dissent in Brown written in the style of Justice Scalia. It reads uproariously badly, as Seidman intended it to. But the larger point is, it's pretty hard to write a dissent from Brown that wouldn't sound bad today. (Do Herbert Wechsler's arguments against Brown sound good today? No, they do not.)
This idea-- that we should decide constitutional cases based on how we think the future will think of what we do today-- is what I call an argument from the future. It is an argument about history, but it is not an argument about original intention or original meaning.
In fact, you might think that it is an anti-originalist argument. Instead of looking to the past for authority, it looks to the future.
Arguments from the future are arguments about the imagined trajectory of history, and how we think we will be viewed from that trajectory. If, like Martin Luther King, you believe that the arc of the moral universe is long, but that it bends toward justice, you will want to be sure that you do justice today, so that people tomorrow will see that you were on the right side when the chips were down.
There is little doubt in my mind that arguments from the future can be extremely powerful, especially to judges who don't have to worry about keeping their jobs, but might well worry what their legacy will be. Indeed, the less you have to worry about your job security in the present, the more you might tend to worry about the future. (Think about what drives second term presidents, for example.).
Arguments from the future do not fit easily into Philip Bobbitt's famous account of the modalities of constitutional argument. As I said above, they are not historical arguments-- Bobbitt says those are arguments from original understanding, original intention, original meaning. They are not textual, structural or precedental arguments. They are not arguments from consequences, because they are not about producing good consequences per se. Rather, their concern is being on the right side of history as viewed from an imagined future.
Arguments from the future might be a special class of arguments from national ethos. Bobbitt says that such arguments are arguments about national character. But in Constitutional Redemption, I argue that what Bobbitt calls "ethical" arguments are really narrative arguments. They are arguments about the meaning of history viewed from a present-day perspective. As such, they can also be arguments about the imagined trajectory of history. Such arguments can be about the meaning of the past in light of the present, but they can also be arguments about the meaning of the present in light of an imagined future.
Thus, I believe that arguments from the future are narrative arguments. They are arguments about how we imagine the story will go forward, arguments about what we imagine the future will be like. The exhort us to be faithful to that future, and to ally ourselves with the imagined judgments of the future.
If we believe in a narrative of inevitable progress, then an argument from the future is an argument for working toward whatever we think "progress" is, and not being left behind. On the other hand, if we believe that America is in decline, then an argument from the future is an argument for holding fast to values that future generations will thank us for defending. (In his famous book, The Supreme Court and the Idea of Progress, Alexander Bickel criticizes arguments from the future precisely because they presume to know the direction in which history is moving.)
Thus, both a defender of same-sex marriage and a defender of traditional marriage might make arguments from the future in the Marriage Cases. The argument from the future for marriage equality is obvious: someday we will think of people who opposed same sex marriage as shortsighted bigots. But the defender of traditional marriage might see the future quite differently. He or she might imagine that later generations will be sorry about the loss of moral fiber in society. In the future, people will pine for the days when traditional marriage was protected and respected, and they will celebrate the judges who fought against the decline of moral values even though so-called sophisticated and progressive people laughed at them and called them homophobic.
Moreover, opponents of marriage equality might concede that in ten or twenty years they will look bad. But what about a century from now? Perhaps people then will realize that today's "progressive" causes were all a big mistake. In 1920, Plessy v. Ferguson looked pretty good, perhaps even better than it might have looked in 1896 (Plessy actually anticipated much of the Jim Crow legislation that came later on.). But in 2013 it looks positively awful.
Thus, like all of the other modalities of constitutional argument, arguments from the future can often be made on both sides of a legal question. Everything depends on what we imagine the future will be like.
Today, most Americans below the age of, say, 40, think that the recognition of same-sex marriage is an inevitability. So to them, at least, it seems as if the proponents of marriage equality can make a much stronger argument from the future than the opponents can. As a proponent of marriage equality, I agree with this assessment. But the point about all arguments from the future is that they are arguments that imagine the future, rather than describe what it will actually be. We never fully know what the future will be like, and it is rarely exactly what we imagine in the present. Arguments from the future are fallible, because we ourselves are fallible.