I must confess I do not buy the “federalism argument” against DOMA that has received a lot of attention at The Volokh Conspiracy. I don’t like DOMA any more than other libertarians, and I think it violates the equal protection component of the Fifth Amendment’s Due Process Clause. But it does not intrude on state sovereignty, as far as I understand.
I’m delighted to announce that I’ve turned in the final (I hope!) manuscript for my next book, The Conscience of The Constitution: The Declaration of Independence And The Right to Liberty.
The book is about how the classical liberal principles articulated in the Declaration should guide our interpretation of the Constitution, and features my defense of “substantive due process” and “judicial activism” (of a sort). In short, I argue that the core error of today’s constitutional law is that it elevates democracy over liberty as the central constitutional value. In fact, individual freedom should be seen as the core of our constitutional scheme. The Constitution, after all, calls liberty a “blessing”—but it does not say the same about government.
This book is intended for curious general readers as well as for lawyers. It’s written for a lay audience, and particularly for Tea Partiers or Occupiers who wonder how it is that—as Justice Thomas put it in his Kelo dissent—so much “has gone seriously awry” with our constitutional law.
Here’s what the cover will look like. It will be published by Cato before the end of the year.
Scalia’s question implies that a constitutional standard such as “equal protection” is essentially a group of specific prohibitions: it forbids a set of government actions which might be labeled A, B, C, and D. The job of the judge or other reader of the Constitution, then, is essentially that of an historical detective, whose role is to figure out whether E, F, and G are also within that set. This approach is concrete: it focuses on specific acts and specific decisions. If the authors of the Constitution thought that G was okay, then G does not fall within that set, no matter what. Scalia’s and Kerr’s approach regards law as a command—and the question is only to find out what that command is. Where there is no discernible command, there simply is no law. If G cannot be found in the historical record, then there is simply no fact of the matter—no law, and no way to answer the question of whether G is or is not within the constitutional prohibition. There’s an old essay called “How Many Children Had Lady Macbeth?” which argues that questions of this sort are absurd when the text does not specify. That is the approach expressed here.
Olson’s answer to Scalia’s question, however, is not only correct, but it also represents a more conceptual, and I think more accurate approach to law in general. Law is not a command; it is more like the elaboration of a story, which flows along logical lines from propositions and inquiries. For this approach, textual indeterminacy is not a knock-out argument; there is such a thing as the law of a matter about which the statutes or precedents are silent or unclear, and the enterprise of law is to extrapolate from existing legal propositions to answer those questions. If A, B, and C are illegal, and the client asks whether he may legally do D, the lawyer may not answer that because the law is silent, the question is meaningless. Instead, the lawyer does his job when he looks behind the prohibition of A, B, and C to determine whether similar arguments would forbid D, and that is the law of the matter. There will inevitably be disputes over the answer he provides, but that does not mean that there is no answer or no law.
Under this second approach—which Dworkin called “law as integrity”—the question of when it became unconstitutional to discriminate against same-sex couples is much richer than the either/or, concrete approach implied by Scalia’s question, or the cynical “law is just politics” approach that Kerr takes. Rather, the answer is that if it is prohibited at all, it has been prohibited since equal protection was required. (And in the federal context, the answer is even deeper: if it is prohibited at all, it has been prohibited ever since equal protection was mandated, and equal protection has been mandated ever since due process of law was mandated.) Law is not an historical record, and lawyers are not in the business of counting tree rings. Law is more like a narrative in which the question of whether Lady Macbeth has children is a meaningful question with an answer.
This sort of reasoning is typically ridiculed among sophisticated modernists today, but its rightness is actually obvious. Law takes place in a world of argumentation and logic. If a person makes a proposition such as: All men are mortal; Socrates is a man—it makes no sense to ask “when did Socrates become mortal?” The mortality of Socrates simply is the case, if it is the case at all. And if we say: Arbitrary discrimination by the state is unconstitutional; this discrimination is arbitrary—then it likewise makes no sense to ask “when did this discrimination become unconstitutional?” True, there is a prescriptive element to a legal proposition that’s absent in the mere logical argument—that is, in the latter case, the government makes a promise—but that promise is contingent on logical implication, and therefore it follows without regard to time, if it follows at all. Olson does not argue that discrimination against same-sex couples was at one time acceptable, but has now become unacceptable. He argues that equal treatment is violated by the current state of affairs or circumstances, in violation of the constitutional promise.
In short, Scalia’s question only seems clever. What it actually does is take an impoverished and superficial view of what law really is. It regards law as a command instead of a promise, and as a collection of concretes rather than logical propositions that subsume all specifics sharing certain characteristics. Like a person who memorizes a text rather than understanding it, Scalia is mimicking, not engaging, the role of the judge. Ironically, such an approach to law takes for granted that a court judgment is always an act of legislation, contrary to his professed belief that law should not be about legislating from the bench.
The James Madison Institute Journal has published my article about the constitutionality of the Individual Mandate "tax" under the Origination Clause, which is the subject of one of PLF's cases. You can read the article online here (p. 40). Here's a sample:
The NFIB decision satisfied practically nobody. If, as some have suggested, Chief Justice Roberts was emulating John Marshall’s Marbury v. Madison decision, that effort failed, because it resulted in an unworkable refashioning of the statute, one for which neither side contended, and which neither side now fully accepts. In fact, NFIB may be the anti-Marbury. Chief Justice Marshall’s opinion is a masterpiece because it asserted the Court’s rightful constitutional power while tactfully withdrawing from a political dispute in which the judges were ill-suited to defend themselves. He accomplished this with a masterfully logical unanimous opinion. NFIB, by contrast, resulted in an illogical opinion that withdraws the Court from its proper constitutional role, and does so solely as a function of political considerations. It also resulted in multiple, overlapping opinions, such that it is unclear now which parts of the opinion are even binding precedents. It imposed an implausible reading on the statute, which raises more constitutional problems than it resolves. Whether the Court can clean up the mess it has created can only be determined by future litigation.