Category Archives: Constitution

Cutting Ties With the Founders

The New York Times reports today that the Democratic Party across the country is erasing its ties with its founders. No longer will the annual party dinners commemorate Thomas Jefferson and Andrew Jackson (as the Republican dinners commemorate Abraham Lincoln). The party wants to be more inclusive, and according to former Democratic Congressman Barney Frank, this is an honest nod to the fact that the politics of racial and sexual identity now trumps the classic Democratic emphases on democracy and economic equality.

Both Jefferson and Jackson were slave-owners, of course, and Jackson played a leading role in the forced removal of thousands of Native Americans from the southeast.

The commemoration of Jefferson and Jackson is as old as the Democratic Party, but it was Franklin D. Roosevelt who sought to mold the party’s image indelibly around them. Jefferson, the author of the Declaration of Independence’s ringing celebration of human equality, and Jackson, the inspiration of modern democracy and the common man, were seen as powerful alternatives to the Republicans’ Lincoln in a time when FDR was trying to forge a coalition of farmers and working class Americans across the country.

But the opportunities facing the Democrats have changed. Now, while the Republican Party becomes increasingly white, the Democratic Party grows in diversity. Given the way in which identity shapes voting patterns, this is not good news for the Republicans. It may seem odd that a major American party would cut its ties with the founding fathers (If the Democrats have their way does America eventually erase Jefferson, Jackson – and Washington too – off its currency? Do the memorials go?), but partisan politics is about the present, not the past. In short, this is predictable.

But what is especially important about this shift is its symbolic meaning. You might think the erasing of ties to Jefferson and Jackson is fundamentally about their role as slave-holders, but the real meaning has just as much to do with the Democratic Party’s rejection of natural law. Remember, again, the words of Jefferson, once thought to be immortal, enshrined in America’s founding document:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of happiness.

From whence do these rights – this equality – derive? From “the Laws of Nature and Nature’s God,” as the previous paragraph declares.

It is no accident that the rejection of Jefferson follows only a few years after the Democratic Party committed itself to gay marriage. The establishment of gay marriage represents the culmination of a fifty-year long shift on the part of the Supreme Court – one enthusiastically supported by the Democratic Party – away from any sort of grounding of human rights and civil law in the laws of nature and nature’s God. Natural rights are out; civil rights are the rage. Natural law is dead; civil law is supreme. Given that morality has no objective reality to it – it is a human invention, not a reflection of a Creator’s purpose for creation – it can only be grounded in subjective reality: individual autonomy.

As Justice Kennedy wrote in Lawrence v. Texas in 2003, “liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.” Based upon this “autonomy of self” citizens have no right to use the democratic process to discourage, let alone criminalize, acts they deem fundamentally immoral. But as Robert R. Reilly points out, this formulation is unusual.

Why did Justice Kennedy not simply say that liberty includes these freedoms, or, … that liberty itself is rooted in unalienable God-given rights? Why the presumption of ‘an autonomy of self’ as the supposed foundation for it? What does this mean?

What it means is that the whole trajectory of the Supreme Court’s reasoning about matters of morality during the past 50 years – a span that encompasses the Court’s determination that an adult’s right to privacy (i.e., autonomy) trumps an unborn child’s right to life – constitutes a rejection of the very doctrine of natural rights and natural law that the founding fathers viewed as the foundation for human happiness. The Democratic Party may as well announce that it is erasing its ties with the Declaration of Independence in favor of a new commitment to the autonomy of self.

We have been here before, of course. When it embraced the infamous Dred Scott decision (which ran roughshod over natural rights in declaring that black people are not, in fact, persons at all) on the eve of the Civil War, the Democratic Party engaged in a short-lived experiment to see if a racist will to power could become the foundation for American government. Abraham Lincoln responded by appealing to Thomas Jefferson’s words in the Declaration that all men are created equal, words that he said were prior in authority to the Constitution itself.

Lincoln recognized that while the founding fathers had their flaws (slavery!), it was in the doctrine of the founders that the purpose of America could be realized. The founders got a lot wrong, but they got the most important things right: natural law, equality, human rights as derived from the Creator, life, liberty, and the pursuit of happiness. The Democrats’ determination to be a party of diversity and inclusion is laudable (and one that the Republicans desperately need to emulate!), but this is not the way to do it.

The Democrats’ desire to erase their party’s ties with Jefferson and Jackson is significant because it constitutes a symbolic rejection of the men who articulated and sought to embrace the self-evident principles of the laws of nature and nature’s God. This is not liberalism. It is the abandonment of liberalism. That’s tragic for the Democratic Party and it is very bad news for America.

Is Charles Krauthammer Right that United States v. Windsor Makes Nationalized Gay Marriage Inevitable?

Charles Krauthammer

In his column in the Washington Post yesterday, and in a plethora of other places, Charles Krauthammer argues that although the Supreme Court exercised restraint in this case, the logic of its ruling in overturning the Defense of Marriage Act (DOMA) made the overturning of traditional marriage laws in all 50 states inevitable. Krauthammer points out that the majority opinion, written by Justice Anthony Kennedy, makes use of two arguments: 1) federalism (or states’ rights); 2) the equal protection clause of the 5th Amendment. If the Court had merely relied on the first argument, he suggests, its ruling would have been essentially conservative, properly returning the issue of marriage to state jurisdiction. The introduction of the equal protection argument, however, necessitates that all gay couples receive equal protection. As Krauthammer puts it,

If the argument is just federalism, the court is saying: Each state decides — and we, the court, are out of here. But if the argument is equal protection, one question is left hanging. Why should equal protection apply only in states that recognize gay marriage? Why doesn’t it apply equally — indeed, even perhaps more forcefully — to gays who want to marry in states that refuse to marry them?

If discriminating (regarding federal benefits) between a gay couple and a straight couple is prohibited in New York where gay marriage is legal, by what logic is discrimination permitted in Texas, where a gay couple is prevented from marrying in the first place?

Which is exactly where the majority’s second rationale leads — nationalizing gay marriage, the way Roe nationalized abortion.

But Krauthammer doesn’t get the Court’s logic quite right. Read the majority opinion and you will notice that it builds the second argument (equal protection) on the narrow foundation of the first argument (a state’s right to regulate marriage within its bounds). The logic is not that DOMA discriminates against gay couples because it does not treat them the same as straight couples, but that DOMA discriminates against a particular subset of married couples because it does not treat them the same as the rest of the married couples of the state wherein they reside. Note how the equal protection argument is carefully worded:

The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States ….

DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal.

(emphasis added)

Lest readers fail to appreciate the significance of this connection, the opinion concludes, “This opinion and its holding are confined to those lawful marriages.”

In his dissent, Chief Justice John Roberts explains why the very connection between the equal protection argument and the federalism argument undermines the case for nationalizing gay marriage on the basis of the former.

The dominant theme of the majority opinion is that the Federal Government’s intrusion into an area “central to state domestic relations law applicable to its residents and citizens” is sufficiently “unusual” to set off alarm bells….

The majority extensively chronicles DOMA’s departure from the normal allocation of responsibility between State and Federal Governments, emphasizing that DOMA “rejects the long-established precept that the incidents, benefits, and obligations of marriage are uniform for all married couples within each State.” But there is no such departure when one State adopts or keeps a definition of marriage that differs from that of its neighbor, for it is entirely expected that state definitions would “vary, subject to constitutional guarantees, from one State to the next.” Thus, while “[t]he State’s power in defining the marital relation is of central relevance” to the majority’s decision to strike down DOMA here, that power will come into play on the other side of the board in future cases about the constitutionality of state marriage definitions. So too will the concerns for state diversity and sovereignty that weigh against DOMA’s constitutionality in this case.

(emphasis added)

In short, the invocation of the equal protection clause merely explains why the federal government is obligated to provide equal recognition to marriages that receive such equal recognition in the states wherein they reside. Why? Because the regulation of marriage is within the prerogative or “sovereignty” of the state, not the federal government. By the same logic, however, the federal government cannot force gay marriage on states that define it traditionally, because to do so would undermine the very same state sovereignty, which is to say, the very federalism on which United States v. Windsor relies.

Does this make it certain that the Court will not nationalize gay marriage in the future? Of course not. There are a myriad of legal issues that arise due to the ever more complicated patchwork of marriage laws among the various states. What happens to a gay couple married in Massachusetts, who then relocate to Georgia? How can they possibly lose the federal benefits to which they were entitled when they lived in Massachusetts? And given the Constitution’s declaration that the contracts entered into in one state are to be recognized in another, how can Georgia fail to honor a marriage contract recognized as valid by both the state under whose law it was established, and by the federal government?

No one knows exactly how the Court will address these questions. Still, as Roberts points out, these sorts of questions are not entirely new, and nothing in United States v. Windsor dictates their outcome.

I write only to highlight the limits of the majority’s holding and reasoning today, lest its opinion be taken to resolve not only a question that I believe is not properly before us — DOMA’s constitutionality — but also a question that all agree, and the Court explicitly acknowledges, is not at issue.

Krauthammer may be right that United States v. Windsor paves the way for future challenges to state laws defining marriage traditionally, but he is wrong that its logic makes the nationalization of gay marriage inevitable. Indeed, as Roberts shows, the logic of the case arguably does as much to protect the sovereignty of those states holding to the traditional definition of marriage, as it does those states that abandon it.

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