Sunday, April 27, 2014
Calder v. Bull was the first case in which the Supreme Court of the United States granted a writ of error to review a state-court decision on the constitutionality of state legislation. See Daniel A. Degnan, S.J., William Paterson, in Seriatim: The Supreme Court Before John Marshall (Scott Douglas Gerber, ed.); see also Judiciary Act of 1789, Section 25. But the decision is not typically studied now for what it reveals about the Supreme Court's appellate jurisdiction in relation to state courts. More typically, first-year law students encounter excerpts from the opinions of Justice Chase and Justice Iredell regarding the relationships among natural principles of justice, state and federal legislative power, and federal judicial power.
The opinion of Justice Iredell is usually noted for his denial of Supreme Court authority to pronounce void a federal or state legislative act that is contrary to principles of natural justice but not contrary to any provision of the Constitution:
If, then, a government, composed of Legislative, Executive and Judicial departments, were established, by a Constitution, which imposed no limits on the legislative power, the consequence would inevitably be, that whatever the legislative power chose to enact, would be lawfully enacted, and the judicial power could never interpose to pronounce it void. It is true, that some speculative jurists have held, that a legislative act against natural justice must, in itself, be void; but I cannot think that, under such a government, any Court of Justice would possess a power to declare it so. Sir William Blackstone, having put the strong case of an act of Parliament, which authorise a man to try his own cause, explicitly adds, that even in that case, "there is no court that has power to defeat the intent of the Legislature, when couched in such evident and express words, as leave no doubt whether it was the intent of the Legislature, or no." 1 Bl. Com. 91.
In order, therefore, to guard against so great an evil, it has been the policy of all the American states, which have, individually, framed their state constitutions since the revolution, and of the people of the United States, when they framed the Federal Constitution, to define with precision the objects of the legislative power, and to restrain its exercise within marked and settled boundaries. If any act of Congress, or of the Legislature of a state, violates those constitutional provisions, it is unquestionably void; though, I admit, that as the authority to declare it void is of a delicate and awful nature, the Court will never resort to that authority, but in a clear and urgent case. If, on the other hand, the Legislature of the Union, or the Legislature of any member of the Union, shall pass a law, within the general scope of their constitutional power, the Court cannot pronounce it to be void, merely because it is, in their judgment, contrary to the principles of natural justice. The ideas of natural justice are regulated by no fixed standard: the ablest and the purest men have differed upon the subject; and all that the Court could properly say, in such an event, would be, that the Legislature (possessed of an equal right of opinion) had passed an act which, in the opinion of the judges, was inconsistent with the abstract principles of natural justice. There are then but two lights, in which the subject can be viewed: 1st. If the Legislature pursue the authority delegated to them, their acts are valid. 2d. If they transgress the boundaries of that authority, their acts are invalid. In the former case, they exercise the discretion vested in them by the people, to whom alone they are responsible for the faithful discharge of their trust: but in the latter case, they violate a fundamental law, which must be our guide, whenever we are called upon as judges to determine the validity of a legislative act.
Calder v. Bull, 3 U.S. 386, 398-99 (1798) (Iredell, J.)
Whether the federal judicial power includes the authority to declare void legislative acts that violate principles of natural justice is a question of obvious interest. But rather than enter into that debate here, I thought I would highlight an aside at the end of Iredell's opinion that refers to Providence in a discussion of the use of a bad means to accomplish a good end:
Upon the whole, though there cannot be a case, in which an ex post facto law in criminal matters is requisite, or justifiable (for Providence never can intend to promote the prosperity of any country by bad means) yet, in the present instance the objection does not arise: Because, 1st. if the act of the Legislature of Connecticut was a judicial act, it is not within the words of the Constitution; and 2d. even if it was a legislative act, it is not within the meaning of the prohibition.
Id. at 400.
Saturday, April 26, 2014
Friday, April 25, 2014
This is the time of the law school semester when law students confront sometimes fanciful hypotheticals on final examinations. For various reasons, I’ve already told my (mostly) first-year students in Constitutional Law that I will not be giving them an essay question on Section 5 of the Fourteenth Amendment. But in thinking about the constitutionality of state-law marriage definitions that require a man and a woman for civil marriage, I came up with a question about a hypothetical piece of legislation that seems like it could fit on a final examination this year. Since I won’t be putting it on an examination, I thought I’d post it and see if MOJ readers have analyses that they would like to share. (We still have a no-comments general policy here, so I’ve cross-posted this on my mostly abandoned (in favor of MOJ) personal blog. If you’d like, go ahead and comment there.)
Suppose that Congress passes and President Obama signs new federal legislation, The Defense of Marriage Equality Act (“DOMEA”). The operative provisions of DOMEA state: “(1) No state shall deny civil marriage to any person because he or she has chosen to marry a person of the same sex. (2) No state shall refuse to recognize a civil marriage that was performed in another state, and remains valid in the state of celebration, on the ground that the married couple are persons of the same sex.”
Congress’s premise in passing DOMEA is that federal legislation is needed to enforce the Fourteenth Amendment’s Due Process Clause, which protects the right to marry for all people, and the Fourteenth Amendment’s Equal Protection Clause, which prohibits classifications that burden fundamental rights and that discriminate against disfavored classes. A “Findings” section of DOMEA states, among other things, “Congress finds that state laws that limit marriage to one man and one woman violate the Fourteenth Amendment because such laws deny gays and lesbians the constitutionally protected right to marry the partner of their choosing.” This congressional finding is based on the Supreme Court’s decisions in Windsor, Lawrence, and Romer, as well as the string of post-Windsor lower-court decisions that have (thus far unanimously) held opposite-sex-only marriage definitions unconstitutional under the Fourteenth Amendment.
Does Congress have authority under Section 5 of the Fourteenth Amendment to enact DOMEA? Provide a brief analysis setting forth the strongest arguments and counter-arguments in support of your conclusion.
Prof. Robert Louis Wilken's new book, The Christian Roots of Religious Freedom, is out. I'm pretty sure I'd pay to read, and that I would be edified by, Prof. Wilken's grocery list -- that confidence is appropriately even greater here. (A video of a lecture on this subject, which Prof. Wilkin delivered at the Lumen Christi Institute a little while back, is available here.)
Here, at Ethika Politika, is a review-essay about John Pinheiro’s religious history of the Mexican-American war, Pinheiro’s Missionaries of Republicanism (Oxford University Press). Matthew Gerken writes:
[I]n a time when so much political attention is focused on questions of religious liberty, the brutal honesty of Missionaries is a breath of fresh air. Against the simplistic narrative of America as a unique bastion of religious freedom, Missionaries chronicles a period of ugly bigotry against Catholics in which “religious liberty” was not a shield held up in defense of the Church, but was instead the very weapon raised against it.
It's a bracing piece -- certainly, as I have written about elsewhere, anti-Catholicism in American history and practice was pervasive and powerful (and has not disappeared). I think, though, that Gerken might be too quick to embrace -- or, might embrace without appropriate reservation -- the idea (common in some circles, I realize) that "there was at least some truth to the charge that Catholicism was inimical to religious liberty and republican forms of government." These are tricky matters, to be sure, but it still seems to me that what the 19th century papal denunciations of "religious liberty" were denouncing was not exactly what existed or has been -- imperfectly -- practiced in the United States. (That said, like Gerken, I think there are reasons to worry that things are moving in the United States in a direction that will bring the Church's religious-freedom proposal into sharper conflict with American practice and belief.)
In any event, this looks like a good book, and I look forward to reading it, but I will do so keeping in mind -- as I have argued one generally should! -- Dignitatis humanae and We Hold These Truths.
Over at First Things, Prof. Mark Movsesian has a post called "Religion's Social Goods," which is a response to the "growing number of legal scholars [who] question whether a justification exists for protecting religion as its own category." Mark offers, as an argument (that can and should appeal to nonbelievers) for treating religion-as-such as "special", the following:
Here’s one such argument. Religion, especially communal religion, provides important benefits for everyone in the liberal state—even the non-religious. Religion encourages people to associate with and feel responsible for others, to engage with them in common endeavors. Religion promotes altruism and neighborliness, and mitigates social isolation. Religion counteracts the tendencies to apathy and self-centeredness that liberalism seems inevitably to create.
In my view, what Mark says here about "religion" is, generally speaking, true and it provides, in many cases, a reason for accommodating, supporting, and respecting the practice of "religion." At the same time (as Mark acknowledges), "religion" does not always do these things and other forms of commitment and association can provide these goods (sometimes, even if we think not as often) as "religious" ones. So, from the perspective of those who are asking "is religion special?", it might seem that Mark has provided a reason not so much for treating "religion" as special as for treating commitments and associations and activities as special if, when, and to the extent that they provide these "important benefits." And, increasingly (as Mark notes), many think the harms that "religion" is said (accurately or not) to cause weigh pretty heavily against the benefits that it (often, even generally) provides.
I agree that religious (and other) associations often provide these benefits. I also think, though, that the justifiability (and, in our legal order, the requirement) of treating "religion" as "special" probably has more to do with (i) certain things that I take to be true about human persons and human dignity, (ii) the limits on (legitimate) political authority, and (iii) the story of the West.
Sherif Girgis, Ryan Anderson, and I (and others) have been asking this question---or posing this challenge---to advocates of the re-definition of marriage for some years. No one has been able to answer the question or meet the challenge. So far as I am aware, only Jonathan Rauch has made a serious effort---and completely failed. The truth is that on the premises that one must put into place to generate the concept of "same-sex marriage," the argument the women in the story below make on behalf of their own "polyamorous marriage" goes through without a hitch. (And they do a great job of making it, by the way.)
Logically scrupulous and candid ssm advocates (Judith Stacey, Masha Gessen, Elizabeth Brake, Victoria Brownworth, the 300+ self-identified LGBT scholars, activists, and allies who signed the "Beyond Same-Sex Marriage" manifesto---including Gloria Steinem, Barbara Ehrenreich, and Kenji Yoshino) recognize this. They have publicly acknowledged that there is no reason, on the revisionist view of marriage in which persons of the same sex can form a marital bond, not to further re-shape the institution of marriage to include multiple partner unions. Indeed, they argue that do that would represent further progress toward the ideal of equality and the norm of justice. Stopping short of doing it is arbitrary and ultimately unjust. Poly families and children born into them, they say, deserve the same legal recognition, support, and protection as conventionally married families and the children born into them.
Of course, there is no need for new slogans, the old ones will do: "freedom to marry," "marriage equality," etc. Nor is there a need for new arguments: "How does it harm you or your marriage if the throuple next door are recognized as being "married"?" "Won't it be better for their kids?" "The more love in the world, the better!" And, of course, there's the trump card: "Oh, so you think that marriage is the union of two and only two people? Aha! You are a bigot! You had better get on the right side of history! And in the meantime don't even think about applying for a job at Mozilla."
April 25, 2014 | Permalink
Thursday, April 24, 2014
That's the title of a new article by Lisa Fullam, D.V.M., Th.D., who teaches moral theology at the Jesuit School of Theology at Berkeley. Fullam's research interests include virtue ethics, medical and sexual ethics, the intersection of ethics and spirituality, and Ignatian spirituality.
Here's the abstract of Fullam's article:
Many Catholic contributions to the debate over civil same-sex marriage are too broad or too narrow. Too broad: civil same-sex marriage is sometimes described as parallel to same-sex marriage in the Church. Too narrow: some Catholic contributions to the discussion have centered on reproductive capacity, ignoring Catholicism’s rich tradition which values marriage beyond procreation. Here, I consider Catholic moral tradition on civil law: civil law is approached in light of the common good, expressed in contemporary societies in terms of equal civil rights. Second, I examine magisterial contributions to the public debate, which are framed in terms of a reading of natural law based in the Scriptural interpretation of Pope John Paul II. Such religious arguments may serve as normative for marriage within the Church, but do not reflect Catholic norms for civil law. Finally, I offer reasons Catholics might advocate civil same-sex marriage.