Wednesday, March 08, 2006

Slavery and Judicial Activism:

Then, as now, Massachusetts was "ahead" of the learning curve in judicial activism. In 1783 they abolished slavery by judicial decree, not by democratic majority vote.

Slavery was abolished by a judicial decision based on a case involving a slave, Quork Walker, who had sued for his freedom based on the master's verbal promise. State constitution later declared: "All men are born free and equal, and have certain, natural, essential, and inalienable rights."
[Hat tip: David Boaz for the link.]

Indeed, in 1772, a judicial decree, not democratic vote, paved the way for the end of slavery in England (I previously thought that this decision, issued by Lord Mansfield, abolished slavery in England, but as this link indicates, it's a bit more complicated).

When individual rights are antecedent to majority rule (as is the case in liberal democracy), it figures that what is commonly called "judicial activism" will be an unavoidable feature of law and life. Well, at least it will be in common law nations where the judiciary is given such an important role.


DSH said...

Incredibly important point. And it bears repeating that the point is confined to "equality" issues only. Not to egalitarianism, for example.

One might "excuse" the courts for not having intervened on equality issues prior to the Fourteenth Amendment. Until then, "equality" was not enshrined anywhere in the Constitution (except, perhaps, equality of the three branches of government, but even that is only implicit, not explicit). True, the Federalist Papers drew attention to the equality of branches, but the word "equality" was nowhere extant in the governing document of the nation. The Fourteenth Amendment changed that.

Thus, when one looks back over equality issues, one is baffled that the courts did not grant women's suffrage, much less black suffrage "from the bench." Granted, the Fourteenth Amendment did not come into existence until after the Civil War. Perhaps no case came before the court to facilitate intervention. But once the Fourteenth Amendment guaranteed "equal protection of the laws," one could assume a priori that any case of inequality (i.e., unequal application of law) would have been ruled unconstitutional. It's even more appalling that segregation continued so long after. "Separate but equal" is just a tad bit disingenuousness. It's arguably an oxymoron, if not a contradiction. At least the court did act finally to overrule segregation, but look how long Plessy remained the precedent?

So what I find most remarkable is that these a priori cases of equality, which were largely resolved outside of the judicial system, I am baffled at the court’s inaction. These are patently obvious cases of unequal application of the laws. That half the population could have been disenfranchised so long after the 1860s, and just as bad, the flagrant incoherence of "separate but equal" remained viable even longer causes the civil libertarian in me to bolt.

The new frontier is "gay rights." Of course, no such thing exists, or is ever likely. But the appellation, while kind of a misnomer, highlights what is at stake. Any appeal to "special" treatment is deservedly denied. But what about "equal" treatment for individual gays, lesbians, transgendered, and bisexuals? If A can do B, under what logic is C denied B? Take marriage, for example. The Fourteenth Amendment is universal; it entirely unrestricted. And while on first thought it might seem to be heterosexually specific, it actually is not. If heterosexuals can marry, if Chinese-Americans can marry, if Christians can marry, etc., why suddenly are gays not allowed to marry? Again, if A can do B, and C can do B, and E can do B, why can't B do B?

Opponents raise the issue of categorical error. No one is denying men from marrying women and vice versa, all that is done is denying men from marrying men and women from marrying women. Marriage is intrinsically cross-gendered. That's its essence. If gays want to marry women, and lesbians want to marry men, no prohibition. Indeed, it might work to "rehabilitate" them oddballs. (Readers, I'm sure, see where I am going.)

Those pesky little "essences." My, they seem to pop up in all the right places, especially when one needs a "reason" to support their objection. But really, Is the "essence" of marriage really that it necessarily be cross-gendered? Literally, what does that "mean?" Those who think essences exist, or are in someway "real," I refer you infra. I won't repeat the obvious: Essences aren't. They don't exist, not even as a mental construct for doing epistemology. Essence is a meaningless construct that obfuscates, not elucidates.

Back to "marriage." What is it? Is it real? Does it have its own independent existence? Show me! Let me "feel" it or even "smell" it. Maybe marriage is something one tastes? Nope, don't think so. So whatever "marriage" is, it's certainly not a concrete particular of something physically and independently existing. Obviously, it is a mental construct. It is an idea in our heads about the relationship between two individuals, usually, but hardly always, intimate. We even use "marriage" metaphorically to mean the relationship between two independently existing things, like marrying bearnaise sauce with our filet mignons. We talk about the President's and Congress's "honeymoon." Indeed, the language of marriage is used throughout our experiences to "evoke" an intimate relationship between two things. We can use it across categories, like marrying fats with proteins.

And there's no question that our linguistic use of marriage "implies" one man and one woman in an intimate relationship. But marriage can be monogamous or polygamous. So even the notion that marriage is "essentially" between two people only may be true now in our culture, in other cultures, several people are often married. So even the "essence" of just two people is contradicted by polygamy. And, of course, there are different "kinds" of marriage: Marriage of convenience, interracial marriage, serial marriages, etc. So, if someone wants to appeal to the "essence" of marriage, the burden is the other to demonstrate that an essence even exists, and if it exists, what one means by "essence." To me, the concept of marriage has no essence; it is intelligibly more fluid and varied than some presumed "Absolute Form."

So "marriage" is really a word for a plethora of concepts that involve relationships. It's a linguistic marker of some idea we have in our heads. But this linguistic marker picks out more than just one idea. And even if it did not, there's absolutely no reason it could not. One of the remarkable properties of language is its flexibility to evolve, adapt, change, have multiple meanings, and be redefined over and over again. Obviously, "marriage" has neither an "essence," nor only a single, universal meaning, and even if it did, there's absolutely no reason it cannot be redefined, changed into multiple meanings, and even include (gasp) the meaning of an intimate relationship between two people of the same gender. Unlike the word "Pope," which is univocal (at least when used rigidly to designate the Bishop of Rome vis-a-vis Alexander "Pope"), the word "marriage" is already polysemous and heterogenous.

Ergo, the opponent to "gay marriage" cannot appeal to its essence, nor even to a rigid designation. And even if one could do the latter, there's no reason why "that" designation can't be changed. Maybe some heterosexuals may want to keep "marriage" for themselves only, the reality (ontology) is that can't do so by appealing to an "essence" or by using a "rigid designator." There is no logical reason why two men, or two women, cannot marry. Not only can gays and lesbians conceive of it, but apparently heterosexuals can too. And it's THAT that bothers them. Not that same-gendered individuals CAN'T marry, but rather that they should not be ALLOWED to marry. And if the best reason "they" can come up with is that marriage is "essentially" (and thus necessarily) only between a man and a woman, the last refuge is an illusion.

So, will the courts ever adopt “marriage equality?” For the sake of justice and equality, will the SCOTUS follow Massachusetts’ lead and break down the walls of inequality that preclude same-gendered individuals from doing what differently-gendered individuals do? Should it? I think so.

Jonathan said...

Thanks! I'm going to feature part of this in a post. Sorry I don't have the time to give you the feedback that you deserve. But I've been real busy!

Connell said...


Unfortunately that website is incorrect. Massachusetts' state constitution, passed in 1780, declared that all men are "born free and equal". This lead Quork (actually Quaku) Walker to sue his master Nathaniel Jennison for his freedom in 1781. The Massachusetts State Supreme Court declared him free in 1783, based on the wording of the three year old state constitution. (The website incorrectly indicates that he won his freedom first and then Mass. passed its constitution. It was just the opposite.)

A great reference is Hon. Peter W. Agnes, Jr., "The Quork Walker Cases and the Abolition of Slavery in Massachusetts: A Reflection of Popular Sentiment or an Expression of Constitutional Law?" vol 36 Boston Bar Journal No. 2 (March/April, 1992)

Basically, yes the Mass. court did abolish slavery without a democratic vote, however much of the courtroom debate acknowledged that "popular sentiment" in Massachusetts had clearly sided on abolishing slavery and that weighed heavily in favor of Mr. Walker. So it's not that clearly a case of "judicial activism" sidestepping democratic process. Either way makes no difference to me - they did the right thing in the long run and that's what is important.

Connell (a radical Homo)
Santa Cruz