The substantive due process argument in the Obergefell decision on same-sex marriage

I have been reading through the Supreme Court's recent Obergefell decision on same-sex marriage. The majority opinion in this decision is an example of the kind of specious post-modernist judicial reasoning that should alarm all Americans.

The opinion rests on a dubious interpretation of the "due process" clauses in the 5th and 14th Amendments of the Constitution. The 5th Amendment reads:

[No person] shall be deprived of life, liberty, or property, without due process of law;

The 14th Amendment was passed after the Civil War to extend the force of the 5th Amendment to apply also to laws passed by the various states:

[N]or shall any state deprive any person of life, liberty, or property, without due process of law;

Justice Anthony Kennedy, the author of the majority opnion, argues:

Under the Due Process Clause of the Fourteenth Amendment, no State shall “deprive any person of life, liberty, or property, without due process of law.” ... The identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution. That responsibility, however, “has not been reduced to any formula.” ... Rather, it requires courts to exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect. ... That process is guided by many of the same considerations relevant to analysis of other constitutional provisions that set forth broad principles rather than specific requirements. History and tradition guide and discipline this inquiry but do not set its outer boundaries. That method respects our history and learns from it without allowing the past alone to rule the present. The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment 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. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.

If you strip away the flowery rhetoric, this reasoning boils down to the following argument:

The 14th Amendment does not allow any state to deny people liberty without due process of law. The freedom to get married is a species of liberty, and a state denying gay couples this liberty cannot possibly be described as acting within the due process of law. Therefore, on the basis of the 14th Amendment, all states that deprive gay couples of the ability to get married are acting unconstitutionally.

This kind of specious reasoning has been labeled substantive due process reasoning and has been the bane of American courts for more than 100 years. The reason why "substantive due process" reasoning is so problematic can be seen from the very first case in which the court employed it, Dred Scott v. Sanford, in 1857. Dred Scott, a slave who had been taken by his owners to Illinois, a free state (a state where slavery was illegal), attempted to sue for his freedom. In a 7–2 decision written by Chief Justice Roger B. Taney, the Court denied Scott's request on the basis of the due process clause of the 5th Amendment. Taney argued:

[T]he rights of property are united with the rights of person, and placed on the same ground by the fifth amendment of the Constitution, which provides that no person shall be deprived of life, liberty, or property, without due process of law. And an act of Congress which deprives a citizen of the United States of his liberty or property merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law.

Thus, we can see that the wording of the 5th and 14th Amendments can be used to justify rights as diverse as the right to same-sex marriage or the right to own slaves. That is, this kind of reasoning is totally unlimited and open-ended and can be used to achieve any legal outcome the justices desire. The very wording of the majority opinion in Obergefell reveals how open-ended this reasoning is: the responsibility to protect fundamental rights cannot be "reduced to any formula," the Court's exercise of "reasoned judgment" (as defined, of course, solely by the court) must be guided by "broad principles rather than specific requirements," the inquiry into fundamental rights knows no "outer boundaries," the ratifiers of the 14th Amendment "did not presume to know the extent of freedom in all its dimensions," we are constantly "learning the meaning of liberty" when we have a "new insight." In fact, there is no logical principle whatsoever that can limit the application of this type of reasoning: as long as you can plausibly characterize some law as denying you a fundamental right in violation of due process of law and get 5 Justices on the Supreme Court to agree with you, then, that law can be declared unconstitutional by the Court.

Judge Robert Bork, in his book The Tempting of America, provides a devastating critique of the "substantive due process" reasoning in the Dred Scott decision:

The first sentence [in the portion of Taney's opinion quoted above] quotes the guarantee of due process, which is simply a requirement that the substance of any law be applied to a person through fair procedures by any tribunal hearing a case. The clause says nothing whatever about what the substance of the law must be. But Taney's second sentence transforms this requirement of fair procedures into a rule about the allowable substance of a statute. The substance Taney poured into the clause was that Congress cannot prevent slavery in a territory because a man must be allowed to bring slaves there. The second sentence is additionally dishonest because it postulates a man who had "committed no offence against the laws," but a man who brings slaves and keeps them in a jurisdiction where slavery is prohibited does commit an offense against the laws. ... How did Taney know that slave ownership was a constitutional right? Such a right is nowhere to be found in the Constitution. He knew it because he was passionately convinced that it must be a constitutional right. Though his transformation of the due process clause from a procedural to a substantive requirement was an obvious sham, it was a momentous sham, for this was the first appearance in American constitutional law of the concept of "substantive due process," and that concept has been used countless times since by judges who want to write their personal beliefs into a document, that most inconveniently, does not contain those beliefs. ... Justice Hugo Black demonstrated ... that the constitutional phrase "due process of law" descended from the Magna Carta's guarantee that no freeman should be deprived of his liberty except by the law of the land. Due process was satisfied, therefore, when government proceeded "according to written constitutional and statutory provisions interpreted by court decisions." When the Court poured substantive content into this procedural provision, Black said, "our Nation ceases to be governed according to the 'law of the land' and instead becomes one governed ultimately by the 'law of the judges.'" He preferred to put his "faith in the words of the written Constitution itself rather than rely on the shifting, day-to-day standards of fairness of individual judges." The latter is always, and only, what the notion of substantive due process means. But, the Supreme Court will not abandon this notion, despite demonstrations of its utter illegitimacy, precisely because it is an ever flowing fount of judicial power.

In sum, then, once substantive due process reasoning starts to be used, it can be used to override almost any legislative act. When this happens, we are no longer living in a state ruled by a written constitution and specific legislative acts (mere "formulas" by Justice Kennedy's reasoning), but one ruled by the whims and personal tastes of an administrative elite consisting of 5 lawyers in Washington. As Justice Scalia writes in his dissent from the majority opinion in Obergefell, when this happens, we have undergone, in essence, a "judicial putsch:"

I write to call attention to this Court's threat to American democracy. ... [I]t is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. ... But what really astounds is the hubris reflected in today’s judicial Putsch. The five Justices who compose today’s majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003. They have discovered in the Fourteenth Amendment a “fundamental right” overlooked by every person alive at the time of ratification, and almost everyone else in the time since. ... This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776; the freedom to govern themselves. ... This is a naked judicial claim to legislative -- indeed, super-legislative -- power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional provision agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices' "reasoned judgment." A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.

Justice Thomas, in a separate dissent, adds:

I have elsewhere explained the dangerous fiction of treating the Due Process Clause as a font of substantive rights. ... . It distorts the constitutional text, which guarantees only whatever “process” is “due” before a person is deprived of life, liberty, and property. ... Worse, it invites judges to do exactly what the majority has done here — “‘roa[m] at large in the constitutional field’ guided only by their personal views” as to the “‘fundamental rights’” protected by that document. ... . By straying from the text of the Constitution, substantive due process exalts judges at the expense of the People from whom they derive their authority. ... That a “bare majority” of this Court ... is able to grant [the] wish of the petitioners, wiping out with a stroke of the keyboard the results of the political process in over 30 States, based on a provision that guarantees only “due process” is but further evidence of the danger of substantive due process.

When courts abstain from using specious substantive due process reasoning, they leave legislating to the legislative branch. Then, if voters determine that the legislature has passed a law that the voters don't like, the voters are free to elect new legislators, who can pass new legislation; that is, if the people don't like the acts their legislature has passed, they have a readily accessible recourse: elect new representatives. On the other hand, if the Court applies "substantive due process" reasoning, it substitutes its own judgment for that of the legislature. If the voters determine that they do not like the Supreme Court's decision, there is no way short of a constitutional amendment for them to reverse that decision; there is no readily available recourse.

As long as you agree with the Court's decisions, the court's use of substantive due process reasoning may be just fine with you. Over the last several decades, the Court has generally used substantive due process reasoning to invent new rights clamored for by the Progressive Left (for example, the right to abortion in Roe v Wade, and the right to same-sex marriage in Obergefell), so the Court's use of substantive due process during those years has been cheered by the Left. (In fact, most on the Left have no understanding whatsoever of the validity (or lack thereof) of the legal arguments used in decisions like Roe v Wade and Obergefell; they are interested only in getting the outcomes they want.) But, the use of specious due process reasoning is a two-edged sword that can just as easily work against Progressive goals. Suppose, for example, that Congress were to pass a law that states:

Individuals in public service professions, (for example, teachers, firefighters, policemen) must join a union and pay union dues.

Suppose an individual teacher were to bring suit against this law, arguing that he should not be forced to join a union. Under an incorrect application of the due process clause ("substantive due process"), the court could find that not being coerced to join a union and pay union dues is a species of liberty, and denying people this liberty "could hardly be dignified with the name of due process of law." Public service employee unions, like the Service Employee International Union, one of the largest supporters of various Progressive causes, would be crippled by such a decision. If this example sounds far-fetched, consider that the Supreme Court just agreed to hear a case in the 2016 term, Friedrichs v. California Teachers Association, that addresses the very question of whether teachers can be forced to join teachers unions and to pay union dues. Of course, we can be fairly confident that Justices Scalia, Thomas, Alito, and Roberts, after expressing such vehement disapproval of substantive due process reasoning in Obergefell, will not apply similar reasoning in Friedrichs.

In 1973, the Supreme Court used substantive due process arguments to decide Roe v Wade. Far from resolving the question of whether abortion is a constitutional right, that decision bequeathed upon the nation decades of ongoing conflict and deep division. It is entirely likely that the Obergefell decision will do just the same. I read, for example, today that, since the Obergefell decision, support for same-sex marriage has dropped by 6%:

Rather than galvanizing Americans into a unified body, the Obergefell decision has left U.S. citizens more divided than ever on the question of gay marriage, after the court itself showed a deep divide on the issue.

Now that 5 robed ephors in Washington have imposed their "reasoned judgment" on the nation and foreclosed all additional legislative debate on how states define marriage, expect further division and conflict to follow.

Be careful, Zoe Tur

Be careful, Zoe Tur, your testosterone is showing.

Post-modernism can misinterpret either judicial or literary texts

I was perusing the foreword to Scalia and Garner's Reading Law: The Interpretation of Legal Texts and came across this wonderful passage about the ability of post-modernism to distort literary texts as well as judicial ones:

Distortion of text to suit a reader's fancy is by no means limited to the law. In the field of literature, T.S. Eliot warned about literary critics who forget they are dealing with a text and instead find in a work such as Hamlet "a vicarious existence for their own artistic realization." They substitute "their own Hamlet for Shakespeare's." The practice of injecting one's own thoughts into texts has long been given free rein in some schools of scriptural exegesis -- so long, in fact, that scholars have given the practice its own disreputable name, eisegesis. The antonym of exegesis, the term eisegesis denotes the insertion of the reader's own ideas into the text, making the reader a full collaborator with the original author and enabling the introduction of all sorts of new material. For eisegetes, the possibilities are endless.

Liberation from text is attractive to judges as well. It increases their ability to do what they think is good. Unlike Shakespeare producers and theologians, judges are pressured by the environment in which they operate. In our adversarial system, one side -- the side with a bad argument -- has an incentive to urge departure from (or distortion of) text. It was about early non-textual expositors that John Locke wrote when he asked: "[Does] it not often happen that a man of an ordinary capacity very well understands a text or law that he reads, til he consults an expositor, or goes to counsel, who, by the time he [has] explain[ed] them, makes the words signify either nothing at all, or what he pleases?"

More on post-modernism's distortions of legal texts to come soon.

Co-ed to parents: my roommate has a dick

Daniella Greenbaum writes in WSJ about Mount Holyoke College, the liberal arts college for women in Massachusetts:

Mount Holyoke will accept applications from anyone on the gender spectrum — except those who were born male and still identify as male. In other words: men.
...
But [Ms. Pasquarella] said students can’t indicate in advance their preferences regarding a roommate’s gender identity. That would be discriminatory. The school wouldn’t consider such a request, she said, “the same way we wouldn’t take into account the request of someone who said, ‘I don’t want to live with a black person.’”

Presumably, then, Mount Holyoke would admit a person who was "born male, but does not still identify as male," but, if you are a young woman, you would not be able to request that you not be assigned said person as a roommate.

Gee, parents are going to be really happy with that one: freshman girl texts mom and dad: "I just unpacked and my roommate is walking around the room with a bra on and his - er, her?? - dick and balls hanging out. Gag me with a spoon!"

It is also interesting to note the circumlocutions we need to go through these days to identify the gender of people. Instead of calling them simply "men," we must resort to expressions like "those who were born male and still identify as male; in other words, men." (I'm still not really sure about that one. Do they mean, like, for reals men?) If I say "freshman girl" instead of "person who was born with a vagina and still identifies as a female and who is in her first year of college," is it a micro-aggresion?

I also note that the phrase in the WSJ article "[persons who are] born male and still identify as male" implies that it is possible to switch the way one gender-identifies. That is, if there is a time when one still identifies as a male, that implies that there may come a later time when one no longer identifies as a male. The WSJ article provides an example of this very phenomenon:

Mount Holyoke President Lynn Pasquerella, when I asked her how the school is navigating these gender cross-currents, told me a story. A young Muslim woman attending Mount Holyoke was assigned a dormitory roommate who was born female but at some point as they lived together began identifying as male. The Muslim student objected on religious grounds, telling the administration that because she accepted her roommate’s chosen male identity, she could no longer live in their room comfortably. Ms. Pasquerella said the school resolved the matter by separating the students — a result that satisfied both parties.

That is, the roommate was born female and identified as a female for most of her life, but "began identifying as male at some point."

But, if it is possible for a woman to begin identifying as male at some point, isn't it also possible for that woman to stop identifying as male at some later point? Conversely, if it is possible for a man to begin identifying as female at some point, isn't it also possible for that man to stop identifying as a female at some later point? And what implications does that have for the young woman who might be forcibly assigned the born-male-but-no-longer-identifies-as-such as a roommate? The born-male-but-no-longer-identifies-as-such obviously stopped identifying as male at some point. But, such a switch implies that it is possible for him (her?) to start identifying once again as male at some later point. And what if he (she?) does so in the middle of the night in the dark as his (her?) roommate sleeps in the bed next to him (her)? Cetera quis nescit?

It is astonishing that universities will pass a myriad of regulations to prevent young men from raping women, but, apparently, will resist taking simple common sense steps to separate young men whose gender identification has been inconstant over time from sleeping in the same room with young female roommates. Of course, exactly the same logic applies if we are talking about allowing men who (currently) gender-identify as women to use women's lavatories. If your young daughter has just walked into the women's lavatory in the park, it is quite possible that this may be the very moment at which a man who gender identifies as a woman may also walk into the lavatory and start to gender-identify as a man again, with potentially highly undesirable consequences for your daughter.

Ovid banished once again

In 8 AD, the Latin poet Ovid was exiled by the emperor Augustus from Rome, the cultural center of the world at that time, to Tomis, a tiny settlement on the Black Sea near the Danube, essentially to the ends of the earth. Ovid continued to write poetry in exile, including the Tristia, a collection of letters bemoaning his fate and lobbying for a pardon. In the Tristia, the poet states that the reason for his banishment was "carmen et error," that is, "I wrote a poem and made a mistake." According to Wikipedia:

Most believe that the "carmen", that is, the "poem" that Ovid refers to is the Ars Amatoria. Many believe that Augustus — who presented himself as the restorer of Roman public morality — could not fail to punish the author of a work who presented himself as a master of adultery and obscenity.

2000 years later, Ovid has once again been banished on moral grounds from the cultural center of the world, this time, New York City. As WSJ reports:

With school out for the summer, Columbia [University in NYC] is making changes to next year’s required reading that reflect some student concerns. Ovid’s Metamorphoses — a book students said was potentially offensive because of its sexual violence — is out, and a Toni Morrison novel was added.

In spite of Augustus' banishment of Ovid 2000 years ago, the poet's works have been disseminated around the world and have served as an inspiration for many of the greatest masters of Western art, including the poets Chaucer, Dante, Boccaccio and Shakespeare (see the table of contents in the collection of essays Reception of Ovid, edited by John Miller and Carole Newlands), the painter Titian (see here), and the sculptor Bernini (see here and here). In spite of Columbia's priggish new banishment of Ovid this summer, the poet will continue to serve as an inspiration for artists and for students of the psychology of (sometimes violent) passion and love.

The Greeks have voted

And it is time to give them what they want. Kick them out of the EU.

And, btw, it is a sign of how utterly out of touch the Greek government is that they think that forcing the resignation of Finance Minister Yanis Varoufakis is a conciliatory move. It is simply laughable.