Oh My God The Obergefell Opinion Is Bad

Last summer, the Supreme Court decided the hideously-named Obergefell v. Hodges, which held that the Constitution protects what we on the left these days call marriage equality, i.e. that state laws defining marriage as between a man and a woman are unconstitutional. And... what with one thing and another I just never really got around to reading the case. Not the majority opinion, not the dissents. I heard some things about it. I heard that Kennedy did a lot of pronouncing about how wonderful marriage is, including a final paragraph the reading of which has apparently become a fixture at weddings. I heard that, as usual in these sorts of cases, his doctrinal analysis was a mess, and (as in Lawrence v. Texas) he was kind of unclear about whether this was an equal protection case or a "substantive due process" a.k.a. fundamental rights case. I heard that Chief Justice Roberts's opinion was far more fire-breathing culture warrior than I had been expecting after his curious dissent in U.S. v. Windsor. But I didn't read it for myself. Between those few snippets and my knowledge of Kennedy's previous gay rights jurisprudence I figured I had a decent kind of idea what the opinion said, and while it left a lot to be desired (aside from, y'know, deciding the case correctly), it had some interesting, maybe even promising stuff going on.

Well I just actually read the damn thing, and oh my god it sucks. It's waaaaaaaaaay worse than I had been imagining. First of all, about half the opinion isn't legal analysis at all, it's Anthony Kennedy Tells The Story of Marriage And How Wonderful It Is. Which first of all is just weird and kinda gross to read in the U.S. Reports. It's like Scalia's dissent in U.S. v. Virginia, the VMI case, where he includes the full text of the Virginia Military Institute's Code of a Gentleman at the end. This is just not something that belongs in a judicial opinion, not like this anyway. (As I'll note later, there could be a place for a little bit of this sort of thing in a better-crafted opinion, but Kennedy massively overdoses us on it.) Second, while there's some nice stuff in what he says, particularly the bits about how the changes that have been made to the institution of marriage over the centuries as women have achieved greater and greater social progress have strengthened and improved marriage, a lot of it is kind of gross on its own terms. He goes on and on about how wonderful marriage is, how it's a bond unlike any other, so ennobling, it's at the heart of human civilization, blah blah blah, and then he's like, hey isn't it great how these gay people love marriage as much as I do! They want in to our patriarchal (if slightly less than it used to be) institution, hooray!!! He literally goes so far as to say that "Were their intent to demean the revered idea and reality of marriage, the petitioners' claims would be of a different order." WTF, bro.

Written Constitutions as a Trap for Hypocrisy

This is the first off-shoot of my general contemplation, in the wake of attending a talk by Bruce Ackerman yesterday evening, of what it is about his constitutional and political philosophy that I find so unacceptable that I have felt worthy of being written up. It's a fairly modest point, and not really much related to Ackerman at all except in that he inspires it through his apparent distaste for the idea that the Reconstruction Amendments, particularly the 14th and 15th, really did provide a textual constitutional basis amply sufficient for the 20th century civil rights movement. I don't know for sure whether the particular factor that I am about to discuss contributes to that distaste, but it seems to me that it might in part be motivated by the fact that the framers of the 14th and 15th Amendments were, for the most part, what we would today consider racists. Most of them were also, certainly, sexists and homophobes and religious bigots. In fact, "bigot" is just a good catch-all term to describe the attitudes of nearly every member of the "good" side of the 1860s political clashes, viewed by modern standards (with the possible exception of men like Thaddeus Stevens). To depend on the legacy of these men, these hypocrites who wrote the shining text of the 14th Amendment into the Constitution but who denied the vote to women and who abandoned any efforts to help black people within a few short years of the passage of that Amendment, who may only have been looking for Negro votes in any case, to craft the sweeping societal changes of the Civil Rights Movement could well seem offensive, as tainting the achievements of true egalitarians like Hubert Humphrey, Lyndon Johnson, and (lest we leave out the contributions of African-Americans themselves) Martin Luther King.

Now, I obviously don't find the contrast between the text of the Reconstruction Amendments and the attitudes of those who wrote and passed them particularly unsettling, but it is definitely a striking contrast. Indeed, the same can be said of the original Constitution, which many (though not all) abolitionists, including Frederick Douglass, argued forcefully was an anti-slavery document, even though it certainly contained a few provisions directly supporting the slave regime and though it was universally interpreted as protecting the "domestic institutions" of the Southern states. How did this happen? How did polities whose fundamental values we would today consider so prejudiced and even hateful manage to write these documents which are so open to much more enlightened interpretations than any their framers could have envisioned, or even to demand such interpretations? I think the answer lies in the concept of hypocrisy.

More Ass-Whupping From J.S. Mill

Here's another one of those paragraphs by Mill that can't be excerpted, only reproduced in full:

I have already observed that, owing to the absence of any recognized general principles, liberty is often granted where it should be withheld, as well as withheld where it should be granted; and one of the cases in which, in the modern European world, the sentiment of liberty is the strongest is a case where, in my view, it is altogether misplaced. A person should be free to do as he likes in his own concerns, but he ought not to be free to do as he likes in acting for another, under the pretext that the affairs of the other are his own affairs. The State, while it respects the liberty of each in what specifically regards himself, is bound to maintain a vigilant control over his exercise of any power which it allows him to possess over others. This obligation is almost entirely disregarded in the case of the family relations—a case, in its direct influence on human happiness, more important than all others taken together. The almost despotic power of husbands over wives needs not be enlarged upon here, because nothing more is needed for the complete removal of the evil than that wives should have the same rights and should receive the protection of law in the same manner as all other persons; and because, on this subject, the defenders of established injustice do not avail themselves of the plea of liberty but stand forth openly as the champions of power. It is in the case of children that misapplied notions of liberty are a real obstacle to the fulfillment by the State of its duties. One would almost think that a man's children were supposed to be literally, and not metaphorically, part of himself, so jealous is opinion of the smallest interference of law with his absolute an exclusive control over them, more jealous than of almost any interference with his own freedom of action: so much less do the generality of mankind value liberty than power.

Boom! I don't really have anything to add, other than that this dude was awesome. I particularly appreciate how, in a section primarily devoted to the defense of children's rights (though the vehicle of the state's protection of those children from abuse and/or neglect by their fathers), he just throws in a little sentence containing one of the major, major policy planks of modern feminism, in an essentially unadulterated form.

John Stuart Mill Demolishes Libertarianism

John Stuart Mill, whose work I praised in my last post, is most famous for his book On Liberty, a spirited defense of the proposition that people not be coerced, either by legislation or by social pressure, in matters concerning only or primarily themselves. You might think that, if anyone would be included within the bounds of a word such as "libertarian," it would be the dude who wrote a book called On Liberty. Nope. Not by the modern sense of that word, anyway. This paragraph is so good it needs to be reproduced in block form:

Again, trade is a social act. Whoever undertakes to sell any description of goods to the public does what affects the interest of other persons, and of society in general; and thus his conduct, in principle, comes within the jurisdiction of society; accordingly, it was once held to be the duty of governments, in all cases which were considered of importance, to fix prices and regulate the processes of manufacture. But it is now recognized, though not till after a long struggle, that both the cheapness and the good quality of commodities are most effectually provided for by leaving the producers and sellers perfectly free, under the sole check of equal freedom to the buyers for supplying themselves elsewhere. This is the so-called doctrine of "free trade," which rests on different grounds from, though equally solid with, the principle of individual liberty asserted in this essay. Restrictions on trade, or on production for purposes of trade, are indeed restraints; and all restraint, qua restraint, is an evil; but the restraints in question affect only that part of conduct which society is competent to restrain, and are wrong solely because they do not really produce the results which it is desired to produce by them. As the principle of individual liberty is not involved in the doctrine of free trade [my emphasis], so neither is it in most of the questions which arise respecting the limits of that doctrine... Such questions involve considerations of liberty only in so far as leaving people to themselves is always better, caeteris paribus, than controlling them; but that they may be legitimately controlled for these ends is in practice undeniable."

As the principle of liberty is not involved in the doctrine of free trade. Yeah. Chew that one over, modern American libertarians. This is why one can be a liberal, which I think in its modern sense is first and foremost about devotion to pretty much Mill's exact ideas about individual liberty, without being a libertarian: those ideas simply don't tell us anything about the proper scope of economic regulation. Economic activity by one person, basically by definition, affects more than just that one person, and is therefore amenable to regulation where appropriate. It is an empirical question when such regulation will be appropriate, not one that can be settled by reference to grand philosophical first principles.

Earlier in the book, by the way, Mill also says that each individual is responsible to society for doing their share of the work of maintaining/defending society, a share which must be determined by some principle of equity. In modern society we choose the "progressive income tax" as the primary principle of equity, and it seems to me to be entirely within the scope of Mill's ideas of liberty. There really isn't much in this work that's inconsistent with anything in the modern American-liberal platform, and it's the definitive statement of the modern ideal of individual liberty.

John Stuart Mill Was Awesome

I have now moved on from Adam Smith to John Stuart Mill's On Liberty. Approximately one-sixth of the way through the book, I've already encountered the following three seriously awesome lines. The first, on the tendencies of people who find themselves in conflict with dominant social norms in some particular:

"They preferred endeavoring to alter the feelings of mankind on the particular points on which they were themselves heretical rather than make common cause in defense of freedom with heretics generally."

The second, rather self-explanatory:

"The only freedom which deserves the name is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs or impede their efforts to obtain it."

The third, of a majority seeking to suppress a minority opinion with which it disagrees:

"To refuse a hearing to an opinion because they are sure that it is false is to assume that their certainty is the same thing as absolute certainty."

The first is an incredibly astute observation and might be one of the first explicit avowals of a pro-hersey agenda. It also, I think, is less true now than when he wrote it in 1859: over the past century and a half, the cause of letting heretics be heretics in all walks of life has made tremendous progress. I'm not sure that Mill and his mentor, Jeremy Bentham, were the first major pro-fun philosophers, but they were certainly in the vanguard of the "let's have fun!" agenda that has revolutionized human society. The second is basically the foundation of modern (secular) moral philosophy, and its acceptance is wholly necessary for the flourishing of that pro-fun agenda. The third is an essentially complete statement of one of the many, many sufficient reasons for protecting freedom of speech. This guy knew what he was talking about. He and Bentham both are just such so refreshingly right about stuff compared to most of their contemporaries and predecessors.

Are You Kidding Me?

In the 1927 case Buck v. Bell, the Supreme Court of the United States declared, eight to one, that forced sterilization laws were perfectly constitutional. Oliver Wendell Holmes, so often the hero of the Lochner era, wrote the opinion. Louis Brandeis and Harlan Stone, two great liberal Justices, joined that opinion. Holmes' argument was basically that this was a small sacrifice to ask people to make for the betterment of society. A few choice quotes:

"It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes."

"Three generations of imbeciles are enough."

This case would have been unanimously decided the other way at any time in our nation's history after 1945. Under modern doctrines which hold that contraception and abortion and "gay sodomy" (Scalia loves to bring up that term; I think he thinks he'll get people to vote with him out of pure "ickiness" factor) are protected rights, that legal result would be immediate, but that's not the point. Before World War Two, eugenics was seen as a reasonable idea. Now it's seen as Hitler, and not without reason. But ultimately this law should stand or fall based on its own nature, not what someone else did under the same banner of eugenics.

Everything's a Decision

Paul Krugman and Brad DeLong direct us to an interview with Friedrich Hayek from 1977. They discuss the real economic parts of the interview, but the following struck me as an interesting bit of political philosophy. In response to the question, "why is there no social justice?" Hayek responds:

"Because justice refers to rules of individual conduct. And no rules of the conduct of individuals can have the effect that the good things of life are distributed in a particular manner. No state of affairs as such is just or unjust: it is only when we assume that somebody is responsible for having brought it about. Now, we do complain that God has been unjust when one family has suffered many deaths and another family has all of its children grow up safely. But we know we can't take that seriously. We don't mean that anybody has been unjust. In the same sense, a spontaneously working market, where prices act as guides to action, cannot take account of what people in any sense need or deserve, because it creates a distribution which nobody has designed, and something which has not been designed, a mere state of affairs as such, cannot be just or unjust. And the idea that things ought to be designed in a 'just' manner means, in effect, that we must abandon the market and turn to a planned economy in which somebody decides how much each ought to have, and that means, of course, that we can only have it at the price of the complete abolition of personal liberty."

This strikes me as almost the logical maximum of the conservative tendency to assume that the moral content of doing nothing is automatically nothing. You only risk doing wrong when you decide to do something in the first place. But this way of thinking about it is completely wrong.

Defining Liberty

In a post by Brown University professor Jason Brennan on the (new, I think) liberal libertarian blog Bleeding-Heart Libertarians, he discusses whether liberty is an inherently social concept or whether, as Brennan argues, liberty is simply the absence of wrongful interference. It strikes me, though, that both he and the right-wing libertarian he's arguing with have things wrong. Liberty isn't specifically about interference, a word which implies agency. It's just about restrictions. The purest form of authoritarianism, we are told, is that everything not forbidden is compulsory. The real point of that definition is that in that sort of world, the individual has zero actual discretion about how they live their lives. Note that this does not necessarily imply that life is unremittingly horrible; one might live in a fairly benign authoritarian regime where you were required to do lots of things that you happened to enjoy. But freedom, or liberty, is certainly not a component of this system. Now, since I'm calling this a regime I've sort of implied an agent, but I don't see that I have any more liberty if some sort of impersonal, abstract forces have deprived me of all ability to choose how I live my life. So I would tend to define liberty as the lack of restrictions on one's ability to choose how to life one's life. There's no logical maximum of liberty of this kind, of course, but it's clear to me that a very poor person has less of it than a very rich person, in the same way you have less liberty if you get stuck in a tiny little cave.

But then again, there's no particular reason to talk about everything in terms of liberty.