Friday, June 26, 2015

A little History

Mark Graber

One central theme in the Obergefell dissents is that a proper understanding of history should have foreclosed a judicial ruling that same-sex couples have a constitutional right to be married.  Chief Justice Roberts maintains that marriage has been defined solely as a relationship between one man and one woman for all time.  Other aspects of marriage, he insists, are superstructural and can easily be discarded.  He also claims that the justices in finding a right to same-sex marriage in the due process clause of the Fifth/Fourteenth Amendment are repeating the error the justices made in Dred Scott v. Sandford when they found a right to bring slaves into American territories in the due process clause of the Fifth Amendment.  Both claims do not withstand historical scrutiny.

Until the twentieth century, marriage was an institution that converted two persons into one legal person.  Blackstone’s Commentaries declare, “by marriage, the husband and wife are one person in law; that is, the very being or legal existence of the woman is suspended during the marriage."  The Lawes Resolution of Womens Rights (1632), the first treatise on that subject, similarly declared, “Though by mere conjunction which is between man and wife, . . . they be by intention and wise fiction of law, one person.”  This unity was as central to the conception of marriage as the notion that a marriage was between one man and one women.  Those who claimed in the nineteenth century that married women had a right to own property were appropriately accused of challenging the definition of marriage in their times.

The Chief Justice also misstates history when claiming that Dred Scott was the first instance of substantive due process in the history of the Supreme Court.  Bloomer v. McQuewan (1852), a patent case, enjoys that honor.  More to the point, as a generation of conservative and liberal legal historians have pointed out, state courts before the Civil War commonly employed substantive due process in numerous contexts.  Both pro-slavery and anti-slavery advocates endorsed substantive due process.  Proslavery advocates insisted that laws banning slavery in the territories unconstitutionally took property without due process.  Samuel Chase and other antislavery advocates insisted that laws permitting slavery in the territories unconstitutionally took liberty without due process.  So, I guess, the Chief Justice is repeating the error of Stephen Douglas who thought people could ban slavery in the territories.

The bottom line is that history in Obergefell and in most other cases does not make constitutional choices for us.  More often than not, our choices are which strands of history we find more attractive.  The justices had to decide which features of marriage thought essential in the past are most essential at present. The answer could not be the traditional features of marriage because in 2015, some traditional features of marriage support same-sex marriage and others do not.   The justices had to decide whether to strengthen or weaken an ambiguous line of precedents relying on the due process clause of the Fourteenth Amendment to protect fundamental rights.  If they followed Abraham Lincoln, they would hold that the due process clause protects the "right" substantive liberties.  If they followed Oliver Wendell Holmes, Jr., the reject substantive due process.  Again, tradition does little more than provide canonical figures and quotations for both sides.  We can judge how well they navigated these historical ambiguities only by applying our best standards.

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