The United States has just discovered in its Constitution the right to gay marriage. So, this raises the question: what does it mean to discover a right?
This immense national event having many dimensions, I’m going to dance around several things here, beginning with the concerns over constitutional democracy. My confession is that I’m basically now stuck between the opinion on one side that the writers of the Constitution never contemplated a right to gay marriage and the opinion on the other side that the writers of the Constitution did nevertheless contemplate the limits of their own contemplation.
But the Constitution, it has thus occurred to me, does, generally speaking, invite philosophical discovery. James Madison, some scholars argue, for a time opposed the idea of a Bill of Rights because he thought it might dampen such discovery. Listing out a bunch of rights might suggest that those mentioned were the only rights, or maybe the way the amendments were written would leave Americans with a deficient and narrow understanding of them. Madison also worried in the Federalist Papers about the cloudy medium of language and how poorly it communicated meaning, and how limited the mind was at discerning ideas in the first place. Hence (more or less, I’m certainly not an expert here) we get the 9th (and 10th) Amendment, which the Court has relied on sparingly because it basically writes a blank check to the people allowing ideas of rights to expand as necessary. It is so wide open that, as far as I understand it, the Court doesn’t know what to do with it most of the time.
Justice Thomas in his dissent tried to say that the “liberty” protected under our Constitution is strictly negative liberty, but rather than arguments in favor of negative liberty he leaves us with definitions of how Framers and philosophers have used the term. A point I don’t think he sufficiently makes is that trustworthy philosophers don’t come along very often. In that sense, we should keep in mind what certified trustworthy philosophers have said in that past, like John Locke. New philosophical discoveries cannot legitimately or logically occur by simply forgetting previous philosophical discoveries.
Chief Justice Roberts is likewise very skeptical of the practice of philosophical discovery in his dissent, and repeatedly points out that the Supreme Court is comprised of lawyers (not philosophers or theologians or prominent social scientists). Furthermore, he ties this case with Lochner, seeing it as another case of where pop-philosophy wrongly becomes a catalyst for judicial activism. C.J. Roberts thus seems to be even more against philosophical discovery than J. Thomas. Rather than counsel us to remember what previous philosophers have discovered, C.J. Roberts counsels the Court that lawyers are not suited for philosophical discovery at all. It isn’t clear how strong he means this — if perhaps philosophers were serving on the Court, would then he perhaps be more comfortable?
Justice Kennedy, writing for the majority, seems to think philosophical discovery is a crucial activity for the Court to engage in. He himself, a la J. Thomas, even briefly cites a philosopher in Alexis De Tocqueville. So what is philosophical discovery, and did J. Kennedy get it right? What has happened when we say that a philosopher (or a Justice) has discovered something?
I can’t tackle this question now, but I do have a few closing thoughts on what I saw in J. Kennedy’s opinion. He wrote about universal human dignity and the suffering that is loneliness. He wrote about marriage in the strongest possible terms, as the fulfillment of the human experience, that it “embodies the highest ideals of love, fidelity, devotion, sacrifice, and family.” And he wrote about homosexuality as an immutable identity. Somewhere in the intersection of all these ideas is the philosophical discovery that J. Kennedy believes has been now revealed. Interestingly, the right to gay marriage has been revealed not by any particular leading philosopher in this case. It seems to have been made visible by the slow erosion of once dominant beliefs, prejudices and social concerns. It thus appears that democracy deserves a lot of credit here, but we must also remember that democracy is not a philosopher, and can never be. Democracy leaves us no philosophical treatise to study, scrutinize, believe in, or teach. This doesn’t mean democracy is wrong, but it does mean that democracy probably just received a dubious promotion in popular esteem, and that opponents to democratic will (minorities) will consequently look even more prejudicial and paranoid and intolerable.
The only way to fix this problem isn’t by taking back the right to gay marriage and going back to handling the issue “democratically.” What we do need, I think, now more than ever, is actually a philosopher who can stand in as our newest moral-political authority, to present us with the philosophical roadmap, the necessary arguments, so this issue can evolve from a contest of wills to a contest of ideas, where all philosophical discoveries–past, present, and future–belong. Perhaps such a philosophical roadmap already exists “out there,” but unfortunately I didn’t see it in J. Kennedy’s opinion, nor did any of the Justices writing in dissent. Do you know of a good candidate?