Gideon's Blog

In direct contravention of my wife's explicit instructions, herewith I inaugurate my first blog. Long may it prosper.

For some reason, I think I have something to say to you. You think you have something to say to me? Email me at: gideonsblogger -at- yahoo -dot- com

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Wednesday, July 09, 2003
Thank-you, Glenn Reynolds, for pointing to this really interesting legal theory blog. I should spend more time around blogs like this and less around blogs of pure punditry.

Apropos of the particular post linked above, I do think Justice Kennedy is leading the Court in the direction of constitutional libertarianism. I suspect that he would, in fact, be inclined to strike down prohibitions on growing of marijuana for private consumption (though he would be likely to let such prohibitions live on the grounds that, were such prohibitions struck down, it would be practically impossible to prevent the growing of marijuana for sale to others, which I'm sure he would agree is a legitimate matter for state regulation). This is a perfectly reasonable legal philosophy, but I'm not sure how to square it with our written Constitution.

As for Rawls' public reason, I think that is a far less coherent concept. It is far harder than Rawls thinks to distinguish public reason from sectarian reason. Catholic teaching on natural law, for example, is explicitly understood to be universal and based in reason, and not derived from revelation. That body of reasoning yields prohibitions on abortion, on fornication (including sodomy), and on birth control. Rawls certainly does not argue that inculcating virtue in the citizenry (the purpose of Aristotle's state) is an illegitimate government interest; he argues, after all, that the government can and should teach its citizens how to be good Rawlsian liberals. I don't think his distinction can be maintained at all, other than in the very narrow sense that arguments from scripture per se are illegitimate.

O'Connor's argument is derivative, I think, of John Hart Ely's: that the Constitution is essentially procedural, and that apparently substantive rights (speech, assembly, religion) are really designed to keep the process open and protect minority voices within that process. In that regard, her concurrance in Lawrence is very much in the spirit of the decision in Romer v. Evans. In her view, the statute in Lawrence was illegitimate not because morality is not a legitimate matter for public regulation per se but because the statute's only plausible purpose was to burden a particular segment of the public. The problem with O'Connor's reasoning is that all criminal law burdens that segment of the public that enjoys engaging in that particular criminal behavior. There are people with a strong compulsion to set fires, people who love driving recklessly, people who torture animals for fun, and these people are burdened disproportionately by laws against arson, speeding and cruelty to animals. Now, in all these cases there is a harm to another that clearly generates a legitimate state interest, but this is just a back-door route to Kennedy's constitutional libertarianism. The Court has historically deemed certain classifications to be suspect for the purpose of equal-protection jurisprudence, most especially race but to a lesser extent native language, sex, physical disability, etc. If the Court was aiming to expand this list to include "sexual minorities" then the question opened is what constitutes such a minority. Polygamists? Necrophiliacs? Adult practitioners of incest? The Court's distinction among these groups is ultimately a moral distinction. So long as we do not traduce Kennedy's Millsian red lines (direct harm to another - that takes care of the pedophiles, at least), he would logically have to vote to strike down laws against any of these practices. For O'Connor, there is the additional question to be answered of whether any of these groups count as "real" minorities against whom the majority has manifested "animus." And, other than by consulting her own gut, it's not clear how she makes that determination.

Lawrence was not a good ruling, but it was hardly a very bad ruling because it does not meaningfully change the playing field from where it stood after Griswold. A constitutional right to privacy is either an open door to constitutional libertarianism or an excuse to strike down those particular moral regulations of which the Court does not approve. Lawrence changes nothing about this jurisprudential situation, but serves only as an accurate marker of cultural change: what the Court, and the majority of Americans, found immoral in 1986 (consensual sodomy), the Court (and I suspect the majority of Americans) finds unworthy of regulation today. Even rock-ribbed conservatives like Clarence Thomas and John Derbyshire don't really disagree with the Millsian principle that conduct of which they personally disapprove (and we know Derbyshire disapproves rather strongly) doesn't deserve criminal sanction if it is truly private, consensual, etc. The issue is whether the citizens of the state of Texas are permitted to dissent from this conclusion, in this case (O'Connor) or in any case (Kennedy).

As a practical matter, though, I do think it is important for social conservatives to articulate their case for moral legislation in terms other than (a) what's wrong is wrong because it's wrong because it's always been wrong and we all know it's wrong; (b) if we permit this immorality, next we'll have to permit that immorality, and that immorality is really wrong because it's wrong because we all know it's wrong and it's always been wrong. Jonah Goldberg and Leon Kass have been notably deficient in this regard, arguing that some thing are wrong because they are "icky." As he himself knows, when a moral projudice comes under reasoned attack, a mere restatement of the prejudice is a poor defense, and when the prejudice has largely been erased it is completely useless as a means of restoring it.

It seems to me that a defense of public regulation of private morality must rest on some qualified embrace of Aristotle's republic of virtue. To do so categorically would be impossible; Aristotle was not a liberal, and we live in a liberal democracy, and must accept its premises. So, if in general we accept the liberal premise that our government is constituted to protect life, liberty and the pursuit of happiness, to what extent can the government be involved in articulating, defending and advancing an idea of the good - of what happiness is - to the people? The simplest, most defensible answer is that government can do this to the extent that this particular idea of the good is necessary for a liberal order to function. If we do not raise a generation of responsible, law-abiding citizens capable of ordered liberty; if we do not raise a generation of patriots ready to defend with arms the Constitutional order that protects their liberty; if we do not raise a generation of fathers and mothers of the subsequent generation, who will manifest the supremacy of duty over desire in the conduct of their marriages; then we will lose our liberty. But even this requires some articulation of boundaries, because you can get from this kind of pragmatic defense of the need to inculcate liberal virtues to a tyranny rather quickly. (See, for example, the American university.) I think the way out of this problem is to embrace some institutions (for example, organized religion, or the family) as ontologically if not historically prior to the state, and hence to some extent immune from state interference. The state may have a monopoly of violence, and may have the right to promulgate values coercively, but not an unlimited right; where it bumps up against these ontologically prior entities, it must generally withdraw. This doesn't prevent the state from being a values tyrant, but it assures that there will be islands (rather large islands, in all likelihood) of sanctuary from that tyranny, in which dissent can be nurtured.

So, ignoring the specific textual question of where precisely the penumbras from which the right to privacy emanates are located, how does this feed back on the decision in Lawrence? One thing Griswold did that Lawrence did not is articulate a boundary to this right to privacy - specifically, it located an island of independence from state intervention in the institution of marriage. If we want to put boundaries on the impact of articulating a right of gay couples to physical intimacy, it becomes important to provide some means of formalizing their relationships.