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Sat, 08 Dec 2012

I've posted a few times now about the Supreme Court, and at one point I noted that I had labeled myself a "strict constructionist". Now that the Defense of Marriage Act (DOMA) and California's Proposition 8 are going to the Supreme Court for review, having been found unconstitutional in a number of lower court cases, I have a chance to swing the pendulum back the other way somewhat.

The terms "strict constructionist" and "loose constructionist", as they are usually used, are actually rather ironic since each really means its opposite when you look closely. A strict constructionist like Justice Scalia says that "the words of the Constitution say what they say and there is no fiddling with them", but he also believes that the "traditions" of our society are what we should turn to when the Constitution doesn't address something, rather than looking at the words in more general terms. But those traditions change over time, as he acknowledges; he just thinks that's okay because the changes happen by democratic processes.

Furthermore, the traditions are not always consistent. For example, in 1996, the Supreme Court struck down VMI's males-only admissions policy in United States v. Virginia. Justice Scalia dissented, arguing that the standard applied by the Court was stricter than it had been in similar cases in the past. However, the service academies had been admitting women since 1976, so Scalia was essentially arguing that it was Constitutional for VMI to exclude women, but equally Constitutional for the service academies to include them.

A loose constructionist, on the other hand, believes that what changes over time is only our understanding of the Constitution and the principles it is based on, not the principles themselves. To a loose constructionist, it was always against the principles of the Constitution for the federal service academies to exclude women; we just didn't understand that until the 1976 laws were passed. Similarly, the Virginia law allowing VMI to exclude women was always, strictly speaking, unconstitutional; we just didn't acknowledge it until the Supreme Court said so in 1996. And if the 1976 federal laws were repealed, a woman could bring suit against the service academies for excluding her and the Supreme Court ought to support her and declare the new law unconstitutional. So we have the ironic situation of a "strict" constructionist having to take a position that implies that what is just changes over time, while the "loose" constructionist is the one arguing that justice itself does not change, although our understanding of it does.

The question the strict constructionist always asks, of course, is what justification the loose constructionist can give for finding all these "new rights" in the Constitution that aren't mentioned explicitly there. I think there is a good argument for this, which I wish would be made more explicit in court opinions on these issues. The Constitution was not meant to enumerate all rights, powers, or duties explicitly; it clearly envisions that people will use common sense in interpreting what it says. This is shown in the original document itself by such clauses as the "necessary and proper" clause, and in the Bill of Rights by the Ninth and Tenth Amendments, which clearly show an expectation that the document is not expected to explicitly cover all cases. This much is admitted by everyone, but strict constructionists appear to believe that there is no middle ground: either the Constitution says it explicitly, or it doesn't cover it at all.

The problem with that strict viewpoint is that it views the Constitution as stating laws. Laws either apply or don't apply; a law concerning theft doesn't apply to a case of assault. But the Constitution is not supposed to be law in this sense; it is concerned with setting up the governmental structure that will make, execute, and interpret laws. As such, it obviously will have to be applied to cases that were not envisioned by the framers, and the only way to do that is to read it, where possible, as giving general principles, not specific rules for specific cases. That is what the loose constructionist does. For example, the Constitution says nothing specifically about marriage, but the Fourteenth Amendment does give general guarantees of due process and "equal protection of the laws". That means that, if the law provides benefits attached to a certain status, such as marriage, all citizens must have equal access to that status; the law cannot arbitrarily exclude a class of persons (such as gays) from access. (This does not mean that the law cannot impose any limitations on access; for example, it can specify a minimum age requirement for marriage, or require some other legal condition, as long as everyone can potentially meet it. Everyone eventually arrives at adult age, barring tragedy.) So laws banning gay marriage are unconstitutional, and the courts should overturn them.

As you can see, this issue is actually pretty simple from the loose constructionist's point of view. The Constitution doesn't specifically say that "equal protection" applies to gay marriage, but it doesn't specifically say it applies to anything. In fact, the Constitution says nothing whatever about marriage specifically. But "equal protection of the laws" is a general principle, not a specific rule for specific cases. It is true that long-standing tradition in our society says that marriage is between one man and one woman, but there are plenty of ways of acknowledging that without violating the equal protection guarantee. One obvious way would be to separate the legal aspects of marriage from the social ones: find some neutral legal term (like, oh, say, "civil union", or "household") and use that to define the legal benefits available, and let various social groups decide for themselves what they will count as a "marriage". You are perfectly within your rights not to invite the gay couple down the street to dinner because you don't acknowledge their union, but you are not within your rights to say they can't file a joint income tax return, make medical decisions for each other if one is incapacitated, buy a house together, or inherit from each other without being taxed.

This brings up the key point that opponents of gay marriage seem unable to talk about: married couples get lots of legal benefits. As the Wikipedia page on same-sex marriage notes, the GAO has identified well over a thousand benefits conferred on married couples, so the ones I listed above, as important as they are, barely scratch the surface. To pretend that gay marriage is only about whose unions deserve to be recognized socially is to ignore the huge network of advantages that "traditional" married couples take for granted. Once those advantages are recognized, of course the equal protection implications are obvious.

In the previous post where I said I had labeled myself as a strict constructionist, I was making the point that the courts should only "say what the law is" in the sense of determining which law should govern when different laws conflict, not in the sense of making new laws. But the loose constructionist also has a valid point: it is perfectly possible for courts to uphold the principles embodied in the Constitution without making up new laws and legal frameworks out of whole cloth. In the case of gay marriage, as I said above, and also back when New York State passed its law permitting same-sex marriage, the issue is pretty simple: does "equal protection" mean what it says, or not? In the Supreme Court's opinion in Brown v. Board of Education, Chief Justice Warren wrote that "Such an opportunity, where the State has undertaken to provide it, is a right that must be made available to all on equal terms". He was talking about education, but I see no reason why the same logic should not apply to the legal benefits that the State attaches to marriage. If that means I have to turn in my strict constructionist membership card, well, so be it.

Posted at 21:34   |   Category: opinions   |   Tags: history, politics   |   Permalink
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