Sunday, June 24, 2007

Founding Compromises & Ideals Again:

"Without the distinction between the principles of the Constitution and the compromises of the Constitution no moral case for originalism is possible, nor is any case possible against the living constitution."

-- Harry V. Jaffa

Over at Balkinization, guest blogger Malla Pollack makes the leftist case against originalism exactly on the grounds to which Jaffa refers. She writes:

Originalism is symbolically unacceptable. Insisting on original meaning implicitly endorses the exclusions practiced by this country’s acknowledged founders. Slavery, attempted genocide of the earlier inhabitants, Justice Story’s Christians-only reading of religious liberty, property and gender requirements for voting or holding office--- none of these positions can be adequately dealt with by blithely claiming that the framing white males were moral enough by the beliefs of their own time. We are not discussing judging them as men. We are considering using them as shared paradigms of the past. How dare anyone ask the descendants of those the founders despised to voluntarily adopt these men as honored ancestors. Originalism has the same emphatic symbolism of hatred as flying the Confederate Flag over a court house. To fulfill Professor Balkin’s (and my) goal of joining the entire citizenry of the United States into a single community aiming at shared redemption, we need to loosen our hold on the past.

Those compromises to which Pollack speaks are serious issues; she is right that no theory which gives them moral legitimacy can take the moral high ground in constitutional debate. Jaffa's solution, to read the constitution through its ideals not compromises with those ideals is, I would argue, the only way for originalists to preserve that moral high ground.

And indeed, there is a philosophical connection between almost every evil she invokes and the ideals of the Founding: Those "compromises" are only able to be judged as "evil" by using the same moral standards which gave rise to the Declaration and the Constitution in the first place. These are the abstract ideals of the Western Enlightenment -- the unalienable rights of "liberty" and "equality" -- upon which both the United States and France declared independence and built (or in the case of the French -- attempted to build) their new orders.

But I also agree with Jack Balkin that viewing the Constitution through its abstract ideals (what I support), as opposed to the (morally unacceptable) compromises with those ideals (slavery, etc.) opens the door to plenty of "results" with which social conservatives would disagree.

And the case of the failure of the French Revolution demonstrates that allowing compromises with those ideas, but with society changing gradually over time, consistent with those ideals, may be the more practical solution. Indeed, such may be the only way to sucessfully implement those ideals.

For instance, it may well be that the abstract notion of Equality (which is textually supported by both the Equal Protection Clause, and "all men are created equal" in the Declaration) demands a Supreme Court decision guaranteeing gay marriage throughout the nation. But, if that is at all appropriate, for practical reasons it ought not be done until, as with Loving and Lawrence, the overwhelming majority of states are in line with that policy.

What if say, tomorrow, the Supreme Court constitutionalized gay marriage? Well, think...what is one of the main rhetorical points in favor of the FMA? We need this otherwise the Supreme Court will inevitably give us gay marriage. Indeed, until recently, Robert Bork was assuring the public that we will soon get gay marriage through a Supreme Court decision (though with two new conservative confirmations, that prospect looks less likely).

National Gay marriage in 2007 means the FMA in 2008, which, like the French Revolution means the failure to successfully implement Founding ideals of liberty and equality.

If we want the Supreme Court to successfully "settle" the case of gay marriage as it did with miscegenation and sodomy, we will have to wait, just like with those two cases, until the majority of states are in line.

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