Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.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
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler 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 yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.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
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Obergefell, Democratic Constitutionalism, and Judicial Review
Among their many other virtues, the opinions in Obergefell v. Hodges contain an important debate about judicial review in a democratic society. All of the dissenters in Obergefell criticize the majority for preempting the decisions of state legislatures across the country and prematurely ending the debate on same-sex marriage.
Justice Kennedy offers two different kinds of responses. At first glance, they seem to be in some tension with each other; in fact they are two ways of describing the same phenomenon-- how lawyers and judges' understandings of constitutional values change over time in conversation with constitutional debates in the larger public.
One of Kennedy's responses to the dissenters is to quote Justice Jackson in West Virginia Board of Education v. Barnette that “fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.” The relevant question is not how much public support there is for same-sex marriage, but whether the right to marry is fundamental and includes same-sex couples. This is a question of law. For this reason, Kennedy explains, the Court was wrong in Bowers v. Hardwick and should have begun to protect gay rights in 1986, if not earlier. This response treats the interpretation of constitutional rights as isolated from the influences of democratic politics. It boldly proclaims that democracy must yield to fundamental rights, begging the question of how judges discover and articulate implied fundamental rights. Kennedy might respond that judges reason from precedent in common-law fashion. But precedents can be read in many ways.
Elsewhere in the opinion, however, Kennedy reasons quite differently, providing a far more important response to the dissenters.
Kennedy argues that “changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations, often through perspectives that begin in pleas or protests and then are considered in the political sphere and the judicial process.” He then spends several paragraphs summarizing the long fight for gay equality, describing numerous interactions between judicial decisions, the political process, and civil society. In an appendix to the decision he lists all of the state courts and lower federal courts that have passed on the question of same-sex marriage. And immediately before he quotes Justice Jackson in Barnette, he spends several paragraphs emphasizing the amount of public deliberation over same-sex marriage: “There have been referenda, legislative debates, and grassroots campaigns, as well as countless studies, papers, books, and other popular and scholarly writings, [as well as] extensive litigation in state and federal courts.” All of this, he explains, “has led to an enhanced understanding of the issue—an understanding refined in the arguments now presented for resolution as a matter of constitutional law.”
In these parts of the opinion, Justice Kennedy is describing what Robert Post and Reva Siegel have called “democratic constitutionalism,” and what I have called the processes of living constitutionalism. Continual interactions between civil society actors, political actors, lawyers and judges shape people's constitutional ideas and judgements. Justice Kennedy repeatedly grounds his constitutional arguments on “changed understandings,” and “new awareness” of the rights of women, gays and lesbians. But those changed understandings and that new awareness did not arise only in the mind of Tony Kennedy. Rather, mechanisms of social influence, which operate in politics, law and culture, changed many Americans’ minds about liberty and equality, and about the justness of recognizing same-sex marriage. These mechanisms changed same-sex marriage, in the minds of increasing numbers of Americans, from a travesty to a curiosity to a plausible claim to a demand of fundamental fairness that should be obvious to every fair-minded individual. And as access to same-sex marriage for gays and lesbians became a requirement of fundamental fairness, it was not difficult to construct constitutional arguments for it. Indeed, these arguments increasingly became persuasive and convincing to people, including many judges.
These mechanisms of social influence moved arguments about same-sex marriage, as I like to say, from “off-the-wall” to “on-the-wall.”
Continual interactions between culture, law, and politics gradually reshape constitutional common sense, thus enabling and authorizing lawyers and judges--not just Anthony Kennedy--to reach changed constitutional conclusions about the best interpretation of the Constitution. To be influenced by these changes, lawyers and judges do not have to watch-- or even care about-- public opinion polls. All they need do is live and participate in a larger culture. Through their everyday efforts at argument and persuasion, Lawyers and judges inevitably translate changing values into constitutional language. They then claim that democracy must yield to fundamental rights, but the source of fundamental legal rights--or, more correctly, new interpretations of these fundamental rights--has been processes of social influence.
Post and Siegel rightly call this a democratic constitutionalism. This process of social influence is “democratic” in the sense that it is interactive and participatory on multiple levels. But it is not “democratic” in the sense that judges are responding directly to elections and the wishes of either politicians or public opinion. Nor is it "democratic" in the sense that judges are mirrors or representatives of the public. The courts are players in constitutional politics, not mirrors of public opinion. Nevertheless, they live in the same culture as politicians and ordinary citizens. When judges make decisions like Obergefell, there is often significant public support for what they do, but there is also usually a substantial segment of public opinion that strongly disagrees—and there are usually politicians who view the Court’s decisions as an opportunity to mobilize against the Court and change constitutional common-sense. Successful mobilization, in turn, may lead to changes in attitudes about the wisdom of constitutional precedents, and so the process continues.
Post and Siegel originally offered this model as a description of constitutional change. In Living Orignalism, I argue that this model explains how the processes of living constitutionalism enjoy long-term democratic legitimacy. I emphasize the words "long-term" because there is unlikely to be a one-to-one correspondence between the public's views about the constitution and the views of the federal judiciary. For every Obergefell, there is a Citizens United, or vice-versa, depending on your substantive views. The point, rather, is that by processes of social influence, the decisions of the federal judiciary stay connected to long-term shifts in public views about constitutional values.
The contemporary democratic legitimacy of the Constitution arises from two sources. One source grounds the legitimacy of the basic framework-- the original meaning of the text and its choice of rules, standards, and principles. The other source grounds the legitimacy of constitutional constructions that are built on the basic framework.
The democratic legitimacy of the basic framework derives from acts of adoption and subsequent amendment by We the People. The democratic legitimacy of constitutional constructions built on the framework comes from the processes of democratic constitutionalism (or living constitutionalism). These help ensure that constitutional constructions are connected to long-term shifts in the public's constitutional values. Both sources produce the Constitution's contemporary democratic legitimacy, and both are important to that legitimacy.
The four dissenters in Obergefell rail against the majority’s
confirmation of a sea change in American attitudes about same-sex
marriage. The irony is that their very presence on the Court, and their
conservative jurisprudence, are also the result of the same processes of
democratic constitutionalism. Their presence on the Court, and the
jurisprudence they created in the past several decades, is in part a
result of the conservative mobilizations of the 1980s and afterwards,
which, for a time, brought conservative politics and conservative
constitutional values into ascendance.
In fact, Justice Scalia likes to invoke a version of democratic constitutionalism whenever he wants to argue for judicial restraint. Judges are chosen from members of elites, Justice Scalia reminds us, and therefore are likely to out of touch with society and its values. Therefore judges should defer to the public's views. In this way, Scalia often presents himself as the defender of the public's common sense. But conservative judges like Scalia tend to be chosen from conservative elites. Does that mean that Scalia believes that his own views about the Constitution are out of touch? Hardly. Scalia has no qualms about exercising judicial review when he thinks it appropriate. Then he sounds pretty much like Justice Kennedy when he quotes Barnette, and explains that constitutional values cannot yield to democratic politics.
One way of seeing how processes of social influence work in practice is to compare Justice Scalia's dissent in Obergefell with his dissents in Romer and Lawrence. In Obergefell, Scalia begins by announcing that whether or not same-sex marriages are legal is "not of special importance to me"-- all he cares about is judicial restraint. Let me repeat that-- he asserts that he really does not much care one way or the other whether gays have the right to same-sex marriages. Well, maybe so. But that's not what he seemed to suggest in Romer and Lawrence, in which he fulminated about public morals and threw out big chunks of red meat to opponents of gay rights. Coming from the Court's most aggressive culture warrior, this shift in attitude is big news.
I am willing to credit that Scalia really has changed his mind in the past decade. After all, he has been living in the same country as the rest of us. By contrast, in his recent op-ed in Politico, Barney Frank doubts very much that Scalia has "evolved" on the morality of homosexuality. Nevetheless, Frank insists, Scalia is keeping quiet about this because he knows that the public--in whose name he always claims to speak--is increasingly against him. Regardless of who is correct about Scalia's real views, the fact that Scalia feels that he has to shift ground and argue solely for judicial restraint--instead of fulminating about the "homosexual agenda" and the decline of American values--is evidence that the processes of living constitutionalism have affected him as well.