Like I Have Time for This

Uggh! While I was composing the post below, Randy Barnett was adding more fuel to the fire. I still have not fulfilled my promise, made weeks ago, to give a full description of my dissatisfaction with conservative arguments in favor of the Federal Marriage amendment. But Professor Barnett has issued a challenge that is just too enticing to pass up:

I also pose the following challenge to those who favor state endorsement of religion at the state level: if you are willing to modify your commitment to the entire Constitution when parts of it get in your way--in order to reach, e.g., private homosexual conduct--can you offer a principled reason why I could not use your interpretive method to evade the original meaning of the Establishment Clause and the Privileges or Immunities Clause of the Fourteenth Amendment to effectuate a separation of church and state that conflicts with the original meaning of both?

I should start out by saying that I am not sure if I qualify for the target audience. I do favor state-level endorsement of Christianity to a limited degree, but I am not willing to modify my commitment to the entire Constitution to achieve it, and I have no particular axe to grind with respect to homosexuality. However, I do disagree with Barnett that Lawrence v. Texas was rightly decided and I think I can offer an argument that does justice to both his jurisprudential concerns and my principles.

The first issue to be raised is with Barnett's suggestion that

...a commitment to formalism based on original meaning requires one to accept results with which one passionately disapproves--such as depriving legislatures of the power to criminalize homosexual sex in private, i.e. not in public places where even heterosexual "fornication" can be prohibited

But such a commitment does not require any such deprivation. This is not the place to go into a full discussion of Lawrence but it is worthwhile to briefly examine the four basic assertions on which was based the decision to overturn the precedent of Bowers v. Hardwick.

a. The right to a homosexual "relationship" is more far-reaching than merely the right to engage in certain sexual conduct and entails a liberty to "enter upon relationships in the confines of their own homes and their own private lives and still retain their dignity as free persons".

b. The historical grounds for prohibiting sodomy have not been limited to same-sex relations until recently.

c. Legislative and judicial changes since Bowers v Hardwick was decided as well as developments in other countries, have called the principles of Bowers into question.

d. Moral disapproval is not sufficient for a governing majority to prohibit behavior.

Points b and c might be relevant if society changes its opinions in this regard (and there is some evidence that it is happening) but societal changes should be enacted by legislatures not courts and, in any event, do not affect fundamental rights. Since rights are based in human nature itself, if it is asserted that a given behavior is a right, presumably it always was and so its status is independent of historical opinions. In fact, positive legislation is often enacted specifically to prevent societal changes from affecting these fundamental rights.

Point d, on the other hand, is precisely what the court was engaged to decide, and so cannot serve as a ground of that decision. It is a direct contradiction of the 10th amendment. The Constitution does not prohibit the states from legislating based on moral disapproval so, unless a violation of some other provision (such as the prohibition on religious tests, for instance) can be shown, the power to do so must be presumed to be reserved to the states. The 9th Amendment indicates that there are non-enumerated rights which are retained by the people, but this simply prohibits the legislature from overriding rights that are understood to exist. It does not empower the court to create new rights that were never previously acknowledged.

This leaves us with point a. It is important to note that this case was decided under a Due Process rubric rather than an Equal Protection one. Due process should refer, not to the content of the behavior, but to the means by which the behavior comes to be prosecuted. But what in the above argument distinguishes the private practice of homosexual conduct from, say, a private practice of smoking marijuana? The only difference that I can discern would be an unstated assumption that homosexual behavior attaches to one's person in a way that other behavior does not. This would seem to be hinted at in the phrase "dignity as persons" in Justice Kennedy's opinion for the majority. This would then presumably require a more extensive process than the normal police authorities entailed by search warrants. This is the theory of jurisprudence known as "substantive due process".

But no such concept is given in the Constitution, so one might disagree in principle with the Court while still upholding the commitment that Prof. Burnett desires. Furthermore, if one believes, as I do, that the concept of substantive due process assumed in this decision, along with a string of cases such as Griswold, Casey and Roe, collectively indicate a pattern of usurpation on the part of the Court, one can reasonably consider methods of reigning in such decisions without necessarily becoming a revolutionary.

I admit that so far judicial conservatives have done more complaining than actual productive thinking, but I think there is a good argument to be made for limiting without abolishing the power of judicial review. There are two ways this could be done. The first would be to provide a legislative check, similar to overriding the presidential veto. I have discussed this below with regard to Rep. Lewis' proposed legislation, although I think he would have been better advised to make it a proposed amendment. This has the benefit of being simple, but the danger of descending into mob rule that both Barnett and I have cautioned against.

The second, harder, way would be to specify more precisely the bases on which the courts may interpret the Constitution. For instance, a full description of the "original meaning" principle might be added as an amendment or perhaps a restriction that no court could construe based on "emanations and penumbral" but must restrict itself to actual the actual text. To be sure, such a proposal would have to be very carefully worded, and I do not know of many people currently alive that I would trust to do it. But Barnett's thorough and principled discussion of the first amendment in the post above gives me hope that there are still people who can think clearly about such issues. And I think the exercise might be valuable in that it would at least clarify what judicial conservatives think they mean when they decry judicial activism.

This discussion has somewhat widened beyond my original intent so let me summarize my answer to Barnett for clarity's sake. I believe it is perfectly reasonable for the state to prohibit private conduct which a majority has traditionally believed to be immoral provided that it does not violate other constitutional principles in doing so (e.g. punishment is not cruel or unusual, laws not applied ex post facto, etc.) and that procedural due process is followed. This applies to such activities as homosexuality, abortion and marijuana use that I would not indulge in, but also to such activities as non-procreative sex that I might. But it does not apply to such constitutionally protected activities as religious worship, political speech, etc. Also, it does not apply to traditionally held rights that are not enumerated in the Constitution, such as the right to educate one's children.

I think this is a sufficiently robust view that it can stand up to whatever criticism Prof. Barnett may be inclined to throw at it. But I confess that sleep deprivation may have falsely induced me to believe that what I have written has been expressed coherently, so I reserve the right to clarify any assertions he finds particularly laughable.