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
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
[This is the second part of Professor Tribe's Jackson Lecture delivered on July 8, 2015, at the Chautauqua Institution in Chautauqua, New York. Part One appears here.]
Moved by the tragedy in Charleston and the inspiring response of forgiveness that the victims’ families displayed, there has been a national tidal wave to take down the emblematic Confederate Flag from one State Capitol after another. What I’m suggesting here is that the tidal wave was too long in coming, and that the Constitution itself requires that tidal wave to continue – and requires it to extend even to State-issued vanity plates. To grasp this constitutional truth we must look, as Jackson would have looked in Zivotofsky, beyond formal categories to the real-world effects of a symbol, and deny government even the option of speaking in a way that significantly threatens to silence vulnerable groups.
Jackson would’ve had plenty of doctrinal support for treating government approval of racist practices as itself a denial of the Equal Protection of the Laws:
Recall Korematsu v. United States, the case in which the Court reviewed military orders requiring tens of thousands of American citizens of Japanese ancestry to surrender up to military authorities for indeterminate confinement in detention camps – or be deemed criminals. Jackson dissented from the Court’s opinion upholding the orders and Fred Korematsu’s conviction for violating them. What troubled the Justice most was that the Court was giving manifestly racist military orders its constitutional blessing, sending the Nation and future decision-makers a MESSAGE that the Constitution tolerates racism by our government.
Jackson insisted on viewing governmental messages through the eyes of those who would receive them and feel the full brunt of their impact.
That was the salient insight at the heart of Jackson’s Barnetteopinion, which was all about the necessity, under our Constitution, of avoiding any governmental practice that puts down or silences some groups by proclaiming the supremacy of others.
The concurring opinion Jackson drafted but never published in Brown v. Board of Education suggests that it was the message of White Supremacy that he found most clearly unconstitutional about racial segregation by force of law.
When the Court extended Brown’s principles in 1967 to anti-miscegenation laws in Loving v. Virginia, it emphasized that, even if Virginia’s laws formally treated Whites and Blacks the same way, it was not free under our Constitution to proclaim Whites the Master Race.
So too, Jackson might very well have said that the demand made by the Sons of Confederate Veterans may be rejected – because it must be rejected. If the Reconstruction Amendments’ promise of equal citizenship means anything, it means that no branch or level of government may issue an official message that all but disenfranchises some citizens, telling them they are inferior to others.
We saw that promise again realized in the Court’s Obergefell decision. At its heart was the Court’s recognition that telling same-sex couples that they’re unfit to share in the institution of civil marriage sends LGBT individuals an official message of inferiority – teaching a lesson government officials are forbidden to teach, whatever their intentions.
With Obergefell, Kennedy cemented his legacy as one of the Court’s great Justices, a jurist with a keen sense of the human condition whose favored doctrinal concept – that of “equal dignity” – is now enshrined as one of the crucial components of constitutional law.
Kennedy developed his jurisprudential vision over time – from Planned Parenthood v. Casey to his famous series of gay rights decisions: from Romer v. Evans in 1996 through Lawrence v. Texas to U.S. v. Windsor two years ago.
Windsor was a particular masterstroke for the way it foreshadowed but did not entirely predetermine the final step in Obergefell.Kennedy, writing for a 5-4 Court, created a fusion of federalism and equal dignity to strike down the horribly misnamed Defense of Marriage Act, signed by President Clinton in 1996. As Justice Scalia scathingly observed in his Windsor dissent, it would be illogical for the Court to stop there. Scalia rightly read the handwriting on the wall. Just as he predicted, the federalism scaffolding of the Windsor decision would in time be discarded, because virtually everything the Windsor majority said about how hurtful and demeaning it was for the feds to deny same-sex couples the dignity their state had accorded them by calling them legally married could be said as well in states that declined to confer that status in the first instance.So, in Obergefell, Kennedy jettisoned Windsor’s federalism frame when it came time to remind the country that, important as federalism is, it’s trumped by the Constitution’s protection of individual rights.
As my friend and colleague Professor Pat Gudridge observed, the most remarkable thing about the final step in that quartet was how unremarkable Kennedy made it seem.
In Obergefell, Chief Justice Roberts’ dissent was more measured than the expected dyspeptic dissents of Justices Scalia, Thomas, and Alito, each of whom denounced the Court’s decision as a lawless threat to the Republic, but in substance it was a radical challenge to the Court’s historic role in furthering social change. It was a challenge that would count equally against every Supreme Court decision protecting any right not expressly enumerated in the Constitution, like a right to use contraceptives – or a right to decide whether to remain pregnant, or how to raise one’s children, or whether to salute the American flag.
Borrowing phrases from Kennedy’s majority opinion, Roberts reminded us that “[t]here is, after all, no ‘Companionship and Understanding’ or ‘Nobility and Dignity’ Clause in the Constitution.” Or a “No Harm Clause” conferring on all citizens a right to “do their thing” as long as they do no harm to anyone else in the process.
And Roberts could not restrain himself – while inviting those who cheered the decision “by all means” to “celebrate” it – from adding this bitter note: “But do not celebrate the Constitution. It had nothing to do with it.” But of course the Constitution had EVERYTHING to do with it, although it wasn’t the Constitution as Roberts was comfortable translating it.
In his Obergefell dissent, Roberts repeatedly invoked the specter of Lochner v. New York, the 1905 decision that had struck down maximum hours laws and that Jackson, like all of FDR’s other appointees to the bench, saw as an example of dangerous judicial activism. Jackson remained opposed to such unwarranted judicial intervention throughout his life.
Their shared dedication to judicial restraint and the rule of law might lead some to imagine that Jackson would have come out roughly where Chief Justice Roberts did in Obergefell. But it seems the Chief Justice did not fully learn all the lessons Jackson’s jurisprudence had to teach. Roberts’s skewed vision of the role that he has carved out for the Court – a vision highly deferential to the political branches except, it seems, in matters of campaign finance, voting rights, and affirmative action! – has led him to lose sight of the true meaning, and promise, of Jackson’s jurisprudence.
Roberts might have done well to look back yet again to Barnette, where Jackson thoughtfully addressed this perennial issue. Noting that we had gotten past the era in which the Court had improperly imposed its “laissez-faire . . . principle of non-interference [in] economic affairs,” Jackson confessed that these “changed conditions . . . cast us more than we would choose upon our own judgment.” His response was terse and telling: “[W]e act in these matters not by authority of our competence but by force of our commissions.”
The dissenting Justices in Obergefell attacked the legitimacy, and lamented the loss of democratic opportunity, in what they saw as the Court’s rush to judgment, and especially the Court’s eagerness to pronounce a verdict for a Nation that was already moving with unaccustomed speed on this issue. Tongue in cheek, Roberts quoted a 1985 law review article criticizing Roe v. Wade as “heavy-handed judicial intervention” that appeared to “have provoked, not resolved, conflict . . . [just because the] political process. . . [wasn’t moving] swiftly enough for advocates of quick, complete change.” I say “tongue-in-cheek” because the author quoted by the Chief Justice was someone he described only as a “thoughtful commentator.” He cited her simply as “Ginsburg.”
Yet a careful look back at Barnette will show that Jackson anticipated that whole line of criticism as well.Meeting the plea that judicial intervention was unnecessary as well as unjustified in the flag salute case because “all the ‘effective means of inducing political changes’ [had been] left free,” Jackson responded with a now-canonical passage that provided the Kennedy majority in Obergefell with its most prominent quotation in support of its decision to bypass both direct and representative democracy:
Kennedy reasoned that the “dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right.” Actual “men and women [are] harmed in the interim,” he stressed. Their wounds linger even if the Court eventually tells them they were right all along. As Kennedy put it so well, “Dignitary wounds cannot always be healed with the stroke of a pen.”
And then Kennedy continues to quote from Jackson’s Barnette masterpiece: “The very purpose of [a Constitution] was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.” This is why, Jackson had continued, “fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”
The Kennedy opinion reaches into the values revealed as implicit in the spirit and structure of our fundamental charter and institutions, the values expressed both in the Constitution’s words and in an emerging national awareness. That approach treats the Liberty and Equal Protection Clauses as embodying synergistically reinforcing dynamic principles rather than hermetically sealed sources of static rules.
The emphasis on synergy, which I’ve been urging for some years and urged again in an amicus brief in Obergefell, had become abundantly clear in Kennedy’s opinions for the Court from Lawrence through Romer to Windsor. In these opinions, Justice Kennedy already intertwined the Equal Protection and Due Process Clauses in a “double helix,” to articulate the central idea of equal dignity under law, a unifying concept that he has almost single-handedly embedded in our constitutional vocabulary and tradition.
I say “almost single-handedly” because the “double helix” can be found in nascent form in earlier cases – including the Court’s 1942 decision in Skinner v. Oklahoma and in a garden-variety 1949 case about commercial advertising on the sides of trucks. The theme Jackson develops in these cases is that the best safeguard against oppressive regulation is the requirement that deprivations those in power would impose on some sections of the community be imposed equally on themselves and their friends and allies.
This “golden rule” view of the Fourteenth Amendment forbids the government from telling certain Americans that they are essentially second-class citizens, whether by refusing to dignify their loving relationships with the hallowed label of “marriage,” by flying a flag of racial hatred at a statehouse, or by forcing them to abandon their deepest beliefs and pledge their allegiance to a symbol whose authority they do not recognize. When the government does these things, it not only fails to treat all its citizens equally – it invades the precious space of individual autonomy, insulting the dignity of all Americans.
The litigants in Barnette had asked Jackson to exempt their children as Jehovah’s Witnesses from the compulsory flag salute under the First Amendment freedom to exercise their religion, which they said prohibited idolatry. But Jackson had deliberately opted to rely not on the freedom to exercise religion – or any other freedom, to use Roberts’ dismissive contrast, “actually spelled out in the Constitution.”
Rather, Jackson’s judgment rested squarely on a broader principle of individual dignity and autonomy, one applicable to all citizens and not just those whose religion forbids making or bowing down to any “graven image.”
It was a principle Jackson thought implicit in our basic charter – a principle Jackson described as “a right of self-determination in matters that touch individual opinion and personal attitude.” He found that right in what he called the one “fixed star of our constitutional constellation,” the principle “that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” He wrote: “Compulsory unification of opinion achieves only the unanimity of the graveyard.”
Like Jackson in Barnette, Kennedy’s doctrinal approach in Obergefell, to the frustration of more buttoned-down readers of the Constitution, made no pretense of following an ancient blueprint fully inscribed in the Constitution’s rarely changed text.
To the dismay of the dissenters in Obergefell, the majority seemed to be mixing and matching constitutional clauses and lines of precedent willy-nilly, even invoking decisions that did nothing more than shield consenting adults in the privacy of their homes from criminal prosecution for the sex they chose to have with one another. But the majority made short work of the shallow idea that freedom can end at protecting the bedroom door from the unwanted presence of the State. In Kennedy’s language, “Outlaw to outcast may be a step forward, but it does not achieve the full promise of liberty.”
To the Justices in the Obergefell majority, the “limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest”– and the stigma it visits on those it excludes from marriage has become clear, even if the limitation of marriage to opposite-sex couples for millennia initially had no such purpose but resulted simply from a field of vision that just didn’t encompass any other possibility.
None of this is to say that I think Kennedy’s opinion is as strong as it might have been. He’s on solid ground when he says that, far from being disrespectful of “the idea of marriage,” same-sex couples plead “that they . . . respect it so deeply that they seek to find its fulfillment for themselves.” But when he adds that they “hope . . . not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions,” Kennedy unfortunately suggests that the unmarried are condemned to “live in loneliness,” their children condemned to “knowing their families are somehow lesser,” and unwittingly sends a signal of inferiority to the many whose loving relationships thrive outside the institution of marriage. Marriage equality? For sure. Marriage for everyone? Not necessarily.
Though Kennedy may have lost sight of the principles that animated Jackson in this important respect, Kennedy and Jackson have a lot in common when it comes to where they look for their lodestar. Both look to the evolving lessons and trajectory of world history; to the insights offered by the social and natural sciences; to what’s happening in the changing society around them; and to the wisdom offered by great works of religion, philosophy, art, and literature.
This is no unmoored, free-form constitutional interpretation. Rather, it is a jurisprudence firmly rooted in a pragmatic understanding of the human condition. Jackson did his best, and Kennedy does as well, to see through the eyes of those whom the law and its language touches.
Please recognize the theme: The Constitution is a great teacher. It expands our field of vision. Its lessons and its meaning evolve as our vision is broadened.
Less widely noticed than Kennedy’s distinctive fusion of liberty and equality around an axis of dignity is his insistence that the Constitution is a teacher, not a straitjacket. As Kennedy puts it in Obergefell, the framing generation "did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”
Ours is a Nation, Kennedy writes, “where new dimensions of freedom become apparent to new generations, often through perspectives that begin in pleas or protests . . .” [We have learned that excluding gays and lesbians from marriage would have “the effect of teaching that [they] are unequal in important respects.” So upholding these laws would “teach the Nation that [they] are in accord with our society’s most basic compact.”]
Kennedy insists that rights come not only “from ancient sources” but also “from a better informed understanding;” explains how distinct textual supports for rights, like the Liberty Clause and the Equal Protection Clause, “may be instructive” as to one another’s “meaning and reach.” He invokes the Court’s dawning recognition, beginning in the 1970s, that gender discrimination once deemed inevitable is instead intolerable as a powerful example of how “new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged.” Kennedy comes close to writing, “We once were blind, but now we see.”
It’s impossible to read his opinion in this moment of what could be a national awakening without hearing the President singing Amazing Grace to the mourners gathered in Charleston.
Part of the reason I’m so drawn both to Kennedy’s vision and to Jackson’s is their shared commitment to the way the Constitution, if we let it become a language that liberates and educates rather than a cage of words that imprisons, can help us – and when I say “us” I mean “We the People” in dialogue with the Justices and with one another – to open our eyes to truths to which we once were blind.
Just being here on the shores of Chautauqua Lake, with the tradition of learning this place embodies, calls to mind what Robert Pogue Harrison wrote in his Essay on the Human Condition about Plato’s “decision to plant his school in a park on the margins of Athens – removed enough to listen to the voice of reason, close enough to stay within earshot of the citizens.”
In the Phaedrus, Socrates asks his interlocutor to reflect on engaging in a dialogue with a painting or with a written text. “The productions of paintings look like living beings,” Socrates wisely observes. “But if you ask them a question they maintain a solemn silence. The same holds true for written words,” says Socrates: “You might suppose . . . they understand what they are saying, but if you ask them what they mean by anything they simply return the same answer over and over again.”
That seems a fitting summary of how some Justices sadly treat the written words of our Constitution: they keep asking of those lifeless words the same formulaic questions. No wonder they hear the same answer over and over again.
But Justice Kennedy, like Justice Jackson before him and in a tradition that Chautauqua so beautifully epitomizes, lets the changing light of life shape the questions he asks of our founding document’s words.
Recognizing that, while there may be some fixed stars, there are no final answers can liberate us all to take part in the great conversation that enlightened republicanism aspires to achieve, and to participate in that distinctively American project, the Constitution Writ Large.
Laurence H. Tribe is Carl M. Loeb University Professor and Professor of Constitutional Law, Harvard Law School. You can reach him by e-mail at larry at tribelaw.com Posted
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