On Constitutional Law and Gay Marriage

Captain Ed and I are discussing gay marriage and other related stuff over on his blog.

UPDATE: In response to Captain Ed's latest comment, I respond:

... I really do believe that it's the job of the SCOTUS (and the other courts) to protect us from a government that oversteps its constitutional bounds. The Founders of this country understood that people had certain natural rights that the government, even where decreed by "majority rule," must not infringe upon. And among these rights are the rights to "life, liberty, and the pursuit of happiness," as decreed in the Declaration of Independence.

The Founders saw government as a necessary evil for avoiding anarchy. The problem was how to found a government mandate that would allow the government to do no more than was absolutely "necessary and proper" to carry out its constitutional functions. The Constitution therefore was meant to be a strict definition of the scope of government powers; i.e., the Constitution defines the limits of what powers the government has, not what rights the people have. 20th-century constitutional jurisprudence unfortunately got this completely backwards.

Seen this way, even policy that is determined by "majority rule" is itself invalid if it is not "necessary and proper" to carrying out one of the government's constitutionally defined functions. As a subsidiary entity of the United States Constitution, Texas is bound by the 14th Amendment, which mandates that the states respect fundamental liberties and refrain from discriminating arbitrarily against classes of persons. See Amicus Brief of the CATO Institute.

I do not believe that the same reasoning would necessarily lead to another Roe, a case which was badly decided for a number of reasons, but mostly because of post-New Deal reasoning which had the Court reaching deep into its previously established jurisprudence of a "fundamental right" to privacy in order to determine whether there was a "fundamental constitutional right" to abortion. Thus, Roe illustrated the problem of the courts selecting what is a "fundamental right," as emanating from the Bill of Rights, and what is not.

It is well-known, and hardly disputed, that many of the Founders were anxious about ratifying a Bill of Rights, because they worried that future generations would conclude that those rights were the only ones protected and guaranteed by the Constitution. That is why a compromise was reached in enacting the 9th Amendment:

The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

A lot of legal scholars have poo-pooed the meaning of the 9th Amendment (as well as the 10th), but I believe that it really means what it says, and that the standard for determining what it means is to consider the notion of "natural rights" as they have been historically understood in the philosophy of the Enlightenment, the founding documents (including the Declaration of Independence) and the common law.

Under the common law, abortion was legal up until what was termed "quickening." So it was neither a fundamental right, but neither was it absolutely proscribed. I think that a Lawrence Court looking at Roe today would probably reach a much narrower holding; something along the lines of, "While we do not believe that the state is without any power to regulate and limit the practice of abortion, a wholesale prohibition is overbroad."

All libertarians should rejoice at the Lawrence decision, because it is the first indication in generations that the Court might once again begin to take the words of the Constitution seriously. Hope springs eternal.