May 18, 2004

When Rickey Writes . . .

by Chris Geidner

. . . I read. Anthony Rickey, as many De Novo readers already know, is a rising 2L at Columbia Law School -- and a guy who has read more culturally enriching and Jeopardy-ready literature than I could ever imagine reading in my life. Tony, who blogs at Three Years of Hell (To Become the Devil), and I have had debates about marriage since the day the Massachusetts Supreme Judicial Court issued the opinion that led to yesterday's weddings.

We have had discussions on four blogs and in countless e-mails, and I have grown to respect him greatly -- even though I, at times, am still floored by the inexplicable positions he takes and hairs he splits to keep those positions tenable. His twists and turns verge on disingenuous in my mind and to others represent brazen attempts at hiding his true opinions.

Although I should have expected it, Tony managed to outdo himself with his post critiquing yesterday's events in Massachusetts. I would like to note, however, that Unlearned Hand -- the other person who heavily critiqued some of my previous marriage posts -- kept it short and sweet yesterday with a post celebrating "loud and clear" his happiness about the overdue inclusion of lesbian and gay couples in marriage.

But Tony saw no need for such niceties. In fact, Tony's poison pen was out in full force as he wrote about "the Kritarchy of Massachusetts."

Tony is not alone. In 2000, conservative columnist Paul Craig Roberts wrote:

One day in the future, a historian will write: "The American Constitution lasted less than two centuries. It was toppled in 1954 when kritarchy first raised its ugly head."

Now, keep in mind, Mr. Roberts has quite a collection of unfortunate-wording-at-best columns (as detailed by Professor Eugene Volokh in January), suggesting that Roberts' embrace of such language was not in the greatest spirit of academic discourse.

Tony, of course, would say he is not like Roberts at all. He couldn't give "two hoots about who gets married to whom," after all, so there's no reading something sinister into his opposition to Goodridge. But why? Tony tells us his opposition to Goodridge, instead, is because "the way this change has occurred weakens the fabric of our democracy."

This isn't an answer, though. This change, far from weakening our democracy, instead strengthens our republic. Two-hundred-and-sixteen years ago, our infant nation was involved in a great debate about who we were and who we aspired to become. James Madison, in Federalist No. 10, preemptively answered Tony's concerns, pointing instead to the opposite of Tony's fear -- the tyranny of the majority -- in defending the plan for our nation:

Complaints are everywhere heard . . . that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority. . . .

[I]t may be concluded that a pure democracy . . . can admit of no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole . . . and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths. . . .

A republic, by which I mean a government in which the scheme of representation takes place, opens a different prospect, and promises the cure for which we are seeking.

Tony, however, would rather just ignore such technicalities, as he makes clear in comments:

But that 'tyranny of the majority' you're talking about? That's democracy. That's people expressing who they are in a self-governing republic. That's us deciding who are leadership is, and through debate--in the media, in the legislatures, at the polls--deciding how we want to live.

Now, that's gone. There is no debate, no discussion that can be had in a public forum that may be of any avail.

Again, we do not live in a pure democracy -- despite what Tony might desire. And we have more leadership to our governance than just a legislature -- despite what Tony's writings might suggest.

Tony's other point is even more opaque. He notes that neither the Bush Web site or blog nor the Kerry Web site or blog mentioned what was happening in Massachusetts. First, I would note, however, that Bush did issue a statement readily available and used by newspapers and news broadcasts around the country. And Kerry has repeatedly been questioned about his views on "gay marriage."

But then Tony concludes with this:

Congratulations, Supreme Judicial Court of Massachusetts: you've made yet one more issue that -- at least in the realm of politics -- dares not speak its name.

I don't understand how this is so. Many of the Democratic debates featured questions about this issue, and politicians are being asked about it all the time. If anything, the SJC raised the issue to a level of national dialogue never before thought possible. To say that the Goodridge opinion removed "gay marriage" from politics is like saying that Brown ended the desegregation discussion. The opposite is true: The political discussion was nonexistent until the courts enforced constitutional promises being denied groups of citizens.

I have tried very hard to give Tony the benefit of the doubt as he issued his repeated "it's not gays getting married I have a problem with, it's the way we got here" line, but the stark distinction between his and UH's posts yesterday gave me pause. If he cares not about my equality, what benefit of the doubt should I be giving his statements?

As he doesn't give "two hoots" about the equality of gay and lesbian couples, Tony Rickey is the embodiment of the need for judicial intervention on this matter. If so many are opposed and even he -- not opposed -- doesn't care about the equality of lesbian and gay couples, then discrimination must be stopped by "the rules of justice" designed to protect our nation from allowing a majority faction to "sacrifice the weaker party."

May 18, 2004 08:03 AM | TrackBack

Nice post Chris. I took issue with several of those same remarks from Tony in a comment over on his blog. Bringing in Federalist 10 was especially good, and, like you, I couldn't believe his claim that the SJC decision has somehow ended/precluded discussion debate on this matter (which he mentioned in this post, and in the post you also mentioned about failing to find anything on either candidate's site). I mean, the nation, and particularly the blogosphere, has been afire with discussion & debate on this issue since last fall (and indeed, last spring after Lawrence), culminating in Bush's endorsement of the FMA.

Posted by: J (visible hand) at May 18, 2004 10:05 AM

Y'know, in the long list of things I think I'm going to regret having written, that "two hoots" thing is probably going to rank up top. The point was simply to say that I have no grand ideological objection to homosexual marriage. It was a rhetorical flourish meant to emphasize that I'm not part of the 'this will end marriage as we know it' brigade, not to diminish the importance of the victory to those who have won it. Nonetheless, you've been ever-critical of those who might consider, even briefly, the concept that marriage for homosexuals might not be the pre-eminent value under consideration.

Nonetheless, your response raises a number of intriguing points, mainly by omission. For instance, James Madison's discussion of tyranny of the majority in Federalist 10 does not call for judicial review as a check on the tyranny of the majority. It merely calls for representative government (as opposed to direct democracy), and a federal structure, a position which is in no way incompatible with my post. You'd be in better stead quoting Federalist 78, in which Hamilton does justify judicial review. Of course, the reason it's so little-quoted these days is that Hamilton's judgments seem so quaint:

Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.

or maybe:
The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

But of course, this judicial review is decidedly not counter-majoritarian, and thus less-availing to your argument.

Similarly, your insistence that this issue is now under discussion is a bit puzzling. You link to a five-line statement of the President (unlabelled among the press-releases--good job finding it, by the way), and note that this was available to the press. But this is far from the full-court press that presidential politicians bring to bear on major issues, or even what they do with minor ones. Kerry, you'll note, still hasn't marked it at all on his blog, though he's mentioned Yucca Mountain, about the teamsters, Brown v. Board, healthcare, the ADA, and attacked Bush's fundraising. "GLBT" issues are basically hidden on a policy page. And on the website that Bush has the most control over, his own, there is nothing. In the world of politics, this is silence.

Sure, there's discussion going on in the news pages, in the blogosphere, in law reviews, what have you. But the matter is, as of now, settled: all this is, in a sense, noise, because it cannot engender change. Change now requires a judge.

(Yes, yes, there is the matter of amendments. But even I'm torn on an amendment. I mean, if I could wave a wand today and pass a constitutional amendment in Massachusetts, I'm not sure if I would. On the one hand, it might be a check on further encroachment by the judiciary. But would I really want to delay how long it could be until homosexuals could marry by necessitating that they form sufficient alliances to gain a supermajority? Fundamentally, amendments turn upon matters of the passions, and it would be a shame for it to come to that.)

So long as we're quoting old documents, let me use a line that has been in the Massachusetts constitution since at least 1780, which does enshrine judicial review. You've tried to cast me as a proponent of direct democracy, when my concern is best described as a concern for separation of powers:

Article XXX. In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.

Perhaps you disagree with me in thinking that this imperative has been transgressed. But that, not direct democracy, is at issue here. (Actually, Madison is a friend to you here, but not in Federalist 10.) But to me, this is simply the rule of men.

Posted by: A. Rickey at May 18, 2004 10:41 AM

Wasn't the will of the people of Massachusetts that all people should be guaranteed the equal protection of the laws? Now we have a disagreement over whether people were denied such equal protection in this case, but I believe it was also the will of the people to authorize the judiciary to judge whether equal protection is being given in a particular case. And in Massachusetts it doesn't take a supermajority for the people to amend their constitution and overrule the courts on this matter. It only takes a simple majority of the legislature in two sessions and the simple majority of the people.

It's also not clear at all that the court's judgement was out of line with the people's judgement on this matter. Polls after the decision showed 50%-38% in support of the court's ruling. The legislature was only barely able to move forward an amendment on the condition that civil unions were provided for, presumably on the belief that they would provide equal protection.

Yes the presidential candidates tend to carefully avoid the subject, but that's a matter of prudent political calculations, not because of any stifling of debate. Before Baehr there was hardly any debate on giving even limited protections to same-sex couples. How many hearings were held at the state or federal level? Now it seems we have at least one Congressional hearing each month on the subject. Far from stifling debate, the court's decisions have gotten people to finally consider the welfare of families that it was previously more convenient to just ignore.

Posted by: Gabriel Rosenberg at May 18, 2004 11:35 AM

Speaking of Baehr the Hawaii response shows that even those that don't think think equal protection was being denied need not restrict the rights of same-sex couples to seek redress in the legislatures. Hawaii passed a constitutional amendment that allowed the legislature to restrict marriage, but it did not require it. So same-sex couples in Hawaii are no worse off than before Baehr, and in fact they are somewhat better off as the decision caused the legislature to pay more attention to this matter and to pass a domestic benificiary bill.

Posted by: Gabriel Rosenberg at May 18, 2004 11:54 AM

One thing is true: same-sex marriage is now in the national debate. But let's never pretend that supporters of Goodridge think this is "political." Political decisions imply compromise, and a choice whether or not to do something at all. I doubt Chris believes this is so. To use his analogy, this is exactly like saying that Brown ended the desegregation discussion, because if we believe it did not, then the Court did absolutely nothing in 1954 but declare a national suggestion on what the Constitution might say. Whether or not the law is implemented correctly, and there is discussion on how best to do so, make no mistake that it is the law.

How can Chris fault Tony Rickey for treating this as a high-stakes game? Because he already decided who the winner should be, and the matter is too plain for debate? Is this the political discussion he posits?

Posted by: Matto Ichiban at May 18, 2004 12:05 PM

Good point on the not needing a supermajority. My point holds, though: it's still greater than the normal amount of influence necessary to make a change in the law, and I'm not certain that placing that kind of burden on a minority is wise. Hence the desire to leave it in the realm of normal legislation. (While not a 'supermajority,' per se, it's the burden of a sustained coalition.)

Yes the presidential candidates tend to carefully avoid the subject, but that's a matter of prudent political calculations, not because of any stifling of debate.

You'll note that I've never said that there wasn't debate--that was merely Chris' interpretation in choosing not to read the whole sentence. If you look at the quote ab