Some Different Thoughts on the Iowa Supreme Court Marriage Decision

I wanted to respond to Mr. Samis’s thoughtful post on the Iowa marriage case and thought it’d be easier to do so by a separate post than by a comment. It is hard to engage such a complicated and emotionally charged question within the confines of a blog. Although I have generally found both my allies and opponents on the question to be gracious and respectful, I am also aware that this is an issue that can degenerate into dueling allegations of bad faith — of, from one side, accusations of “hate” and “prejudice” and, from the other, charges of “licentiousness” and “irreligion.” I also know that to raise the conservative position in the academy is like launching an offensive deep behind enemy lines. You may soon find yourself surrounded.

But I am finishing (with Daniel Suhr ’08) a paper on interpretation of marriage amendments using Wisconsin as a case study, so the topic is much on my mind.

First, a disclosure. I was a public proponent of Wisconsin’s marriage amendment and based my case on wholly secular grounds without reference to the morality of same-sex relationships. While I appreciate that my church believes such relationships to be morally impermissible, I am not persuaded by that judgment.

Nor do I disagree with Mr. Samis that gay and lesbian relationships, just as heterosexual unions, may — hopefully, will — exhibit the loving and supportive characteristics that he observed between his friends. I have observed the same in my own circles.

But where proponents and opponents of genderless marriage part ways is on the question of whether this resolves the matter. The latter focus not on merely on what may be similar about same-sex and opposite-sex intimacy, but also on what is distinctive.

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Virtual Book Club: Constitutional Historians and Constitutional Theorists

Michael O’Hear is to be applauded for his concise summary of Professor Tribe’s argument.  Thanks to Michael, the rest of us can dispense with the need to explain to the reader the contours of Professor Tribe’s thesis.

As I read Tribe’s book, I was reminded of a story told to me by a friend who was in William Nelson’s Constitutional History seminar at Yale in the mid-1970’s.  Nelson apparently was arguing at that time that the ratification of the Constitution of 1789 actually made very little difference, and had the Articles of Confederation remained in effect, that document would have been interpreted to mean pretty much the same as the Constitution that replaced it came to mean.

Of course, I wasn’t in the class, but I take it that Nelson believed that the constitutional norms that emerged in post-1789 America would have developed with or without any specific constitutional text, and whatever written constitution there was would have been interpreted so that it would embrace those values.  In the alternate timeline it might have been necessary to amend the constitution a bit more frequently than actually occurred, but I suspect that this point is probably correct.

To me, Tribe’s argument that constitutional norms exist independent of the text of the Constitution seems only another variant on this argument.

In fact, the manner in which he presents the argument illustrates a fundamental difference between constitutional historians and constitutional scholars. Constitutional theorists and constitutional lawyers operate within a paradigm of constitutional argument that assumes that the precise nature of arguments matter and that judicial decisions can be influenced by the logic of constitutional analysis.

Constitutional historians, on the other hand, stand outside the paradigm and simply try to understand and to explain what is going on.  Historians have long realized that the paradigm is quite self-serving — it creates a role for the constitutional advocate and the constitutional theorist — and that its fundamental premises ultimately fail to jibe with the reality of judicial decision-making.  Historically, judges have been much more likely to reach results in constitutional cases through the felt imperatives of “constitutional” values than by being persuaded by logically constructed arguments or imaginative textual interpretations.

Every now and then it dawns on a constitutional theorist that the primary paradigm doesn’t really make any sense, and he reports it to his colleagues as a revelation.  Which it isn’t, at least for those who have studied history.  Constitutional historians make this point over and over.  Richard Beeman’s new book on the Constitutional Convention wonderfully illustrates the historical contingency of everything associated with the Constitution of 1789, whether it be the text itself or the ideas that were passing through the brains of various Founders.  The point is not that constitutional norms are meaningless or purely fungible.  Rather, constitutional meaning is an organic concept that evolves over time and which is subject to a variety of restraints.  For some reason, constitutional scholars and constitutional lawyers never seem to catch on.

The problem, of course, is that constitutional advocates are required by the system in which they operate  to argue in terms drawn from inside the paradigm.  Even if you believe that judges decide cases on the basis of culture and common norms and that history rather than logic dictates the resolution of most constitutional disputes, you cannot say that to the judge.  The lawyer has to at least go through the motions of a traditional text-based constitutional argument.  It is as though we tell ourselves one story in private but require that a different one be told in public.

As law professors, we have to train our students in the art of making acceptable constitutional arguments.  But we should be honest and tell them that the content of constitutional arguments and constitutional truths are two entirely different matters.

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Virtual Book Club: Tribe on the Invisible Constitution

As announced earlier this semester, several faculty members have been reading Laurence Tribe’s The Invisible Constitution.  I hope that we will be having a series of posts and comments on the book.  I have just finished reading it.  A few very general reactions will be offered here.

Tribe’s interest is in a set of principles that have come to be accepted as constitutional in nature, but that appear nowhere in the Constitution’s written text.  He lists as examples:

  • Courts must not automatically defer to what elected officials decide the Constitution means.
  • Government may not torture people to force information out of them.
  • In each person’s intimate private life, there are limits to what government may control.
  • Congress may not commandeer the states as though they were agencies or departments of the federal government.
  • No state may secede from the Union.  (28)

In developing his thesis that the Constitution contains such invisible “dark matter,” Tribe implicitly situates himself in opposition to the formalist school of constitutional interpretation, which emphasizes the written text of the Constitution and historical documents from the framing era that shed light on the meaning of the text.  Tribe instead understands the content of the Constitution to evolve over time, even without formal amendment of the text. 

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