Epstein presents the debate over same-sex marriage as a clash between two competing philosophies. On one side, he identifies the conservative preference for democratic majoritarianism:
Generally ... conservatives insist that most important structural questions in the U.S. should be decided through the democratic political processes, in the separate states. ... Conservatives regard the Goodridge decision as unprincipled meddling of the worst sort. After all, current canons of constitutional interpretation require judicial deference to legislation. The courts must uphold any statute, however unwise, as long as a rational basis can be discerned. But after Lawrence v. Texas last year, in which the Supreme Court struck down a longstanding Texas antisodomy law, social conservatives are right to ask why -- if such laws are struck down as unconstitutional -- the prohibitions on same-sex marriages won't be next on its agenda, notwithstanding the Court's own disclaimers on this explosive question.On the other side, he identifies the constitutional libertarian's preference for individual autonomy:
The libertarian wing regards democratic government as an imperfect means in service of the larger end of personal liberty, and thus strongly pushes the guarantees of individual rights to their logical conclusion. ... Constitutional libertarians hold that the state must always put forward some strong justification to limit the freedom of association of ordinary individuals. Those justifications might include stopping pollution and cartels, but they cannot include the offense that the majority takes to practices they regard as contrary to public morals. Their remedy is to refrain from participation in the practices they dislike, not to stop others from doing as they please.So much for morals legislation of any form. In any event, Epstein makes clear that he would privilege individual autonomy over democratic majoritarianism in all cases (in contrast to left-liberals, who privilege it only with respect to favored interest groups):
The question here is not just whether the courts will impose their views on the people of the several states. It is whether they will allow a majority of the public to impose its will on a minority within its midst in the absence of any need for a collective decision. The claim for same-sex marriage is no weaker than any other claim of individual rights on personal and religious matters. ...
The case against state prohibition of same-sex marriages becomes clearer when we ask how much further we are prepared to take the principle of democratic domination. Where is the limiting principle on majority power? Suppose that the proponents of gay rights get strong enough politically to require traditional churches to perform gay marriages, or to admit gay individuals into their clergy. Or to demand that people accept gay couples as tenants in their homes, even if they regard their relationship as sinful. Now the shoe is on the other foot. I think that the paramount claims of individual liberty should not have to yield to democratic decisions intended to impose an alternative enlightened view of public morals.A plausible and principled account. Yet, I think Epstein errs by mischaracterizing the conservative position.
Conservatives do not privilege present (and possibly temporary) democratic majorities against all other claims. Instead, as Russell Kirk explained long ago:
The conservative endeavors to so limit and balance political power that anarchy or tyranny may not arise. ... Knowing human nature for a mixture of good and evil, the conservative does not put his trust in mere benevolence. Constitutional restrictions, political checks and balances, adequate enforcement of the laws, the old intricate web of restraints upon will and appetite—these the conservative approves as instruments of freedom and order. A just government maintains a healthy tension between the claims of authority and the claims of liberty.How is that tension to be resolved in particular cases? As noted, the conservative does not rely on the will of temporary present majorities. Instead, the conservative looks to the collective wisdom of society over time:
Conservatives are champions of custom, convention, and continuity .... Order and justice and freedom, they believe, are the artificial products of a long social experience, the result of centuries of trial and reflection and sacrifice. Thus the body social is a kind of spiritual corporation, comparable to the church; it may even be called a community of souls. Human society is no machine, to be treated mechanically. The continuity, the life-blood, of a society must not be interrupted. Burke’s reminder of the necessity for prudent change is in the mind of the conservative. But necessary change, conservatives argue, ought to he gradual and discriminatory, never unfixing old interests at once.Custom and tradition thus function as a check on both democratic majorities and judicial activists in the conservative scheme. To use Epstein's examples, nothing in our traditions or customs requires traditional churches to perform gay marriages or to admit gay individuals into their clergy; to the contrary, custom and tradition preclude such efforts. Hence, in the face of a democratic majority commanding such "reforms," courts would appropriately strike down such laws. Perhaps the vehicle for doing so would be the privileges and immunities clause of the 14th amendment, which the conservative might see as embodying a sort of Blackstonian common law of the customary and traditional rights of individuals. Conversely, courts would have no right to impose same-sex marriage against the will of democratic majorities:
It is old custom that enables people to live together peaceably; the destroyers of custom demolish more than they know or desire. It is through convention—a word much abused in our time—that we contrive to avoid perpetual disputes about rights and duties: law at base is a body of conventions. Continuity is the means of linking generation to generation; it matters as much for society as it does for the individual; without it, life is meaningless. ...
Conservatives sense that modern people are dwarfs on the shoulders of giants, able to see farther than their ancestors only because of the great stature of those who have preceded us in time. Therefore conservatives very often emphasize the importance of prescription—that is, of things established by immemorial usage, so that the mind of man runneth not to the contrary. There exist rights of which the chief sanction is their antiquity—including rights to property, often. Similarly, our morals are prescriptive in great part. Conservatives argue that we are unlikely, we moderns, to make any brave new discoveries in morals or politics or taste. It is perilous to weigh every passing issue on the basis of private judgment and private rationality. The individual is foolish, but the species is wise, Burke declared. In politics we do well to abide by precedent and precept and even prejudice, for the great mysterious incorporation of the human race has acquired a prescriptive wisdom far greater than any man’s petty private rationality.Modern day judges should not be able (especially by 5-4 votes) to overturn the collective wisdom of society as expressed by statutes and common law for generations.
I confess that I am still groping towards a fully realized conservative theory of judicial review. I have merely tried to develop some thoughts here from conservative first principles, without demonstrating that the law should incorporate those principles. I also have not worked out how one would hold judges accountable when they pursue personal policy preferences rather than enforcing the customs and traditions of society (relatedly, I have not worked out how judges will identify those customs). But those are tasks for another day.
Update: Richard Epstein sent along a typically cogent response, which I am glad to republish here:
Steve Bainbridge was kind enough to send me his sympathetic critique of the position that I outlined earlier today in the Wall Street Journal. It is very clear to me that his Burkean (or even Hayekian) conservative whom he takes as the finest exemplars of the conservative position. To these great thinkers of the past, rational comprehension of complex political issues and forces was hard to come by. Those who tried too hard to plan the right result often ended up doing far more harm than those who are content to allow slow, often subterranean processes to control the pace of change and social organization. Hence tradition and custom become the watchwords of our times, so that there is a built-in bias in favor of the status quo, so long (I will add) as we think that it has come about by processes that in broad outline should command our political respect. Slavery, no matter how well entrenched, would not meet that test. A prohibition against gay marriage, polygamy or incest would.
There is much about this account that strikes me as correct. The key provision, as a constitutional matter, may well be the privileges and immunities clause of the Fourteenth Amendment, which before its evisceration in the Slaughter House Cases (1982) seemed to hint at the protection of traditional liberties, which were much more oriented toward economic liberties and property rights, and which by then then current understanding did not include anything that related to the somewhat distant topic of marriage and morals. If that clause were dispositive, then there would be no case for striking down the prohibition against same sex marriages under the constitution, even though there could be strong political reasons to doubt the wisdom of the prohibition.
It was one of those peculiar twists of fate that the evisceration of privileges and immunities led to a greater constitutional expansion under the equal protection and due process clauses. Both apply to all persons, not just citizens, and the due process clause refers to liberty, which is probably a somewhat broader notion than privileges and immunities in that it is not subject to modification by the traditionalist requirements. When that becomes the battleground for constitutional argument, the case becomes much closer.
Here the soft underbelly of the traditionalist account is that, while it might be able to catalogue past practices, it does not offer any coherent justification for them. The heightened level of judicial review that was found first between 1870 and 1937 was noted for its effort to offer rational grounds (not the flimsy rational basis test, but real systemization) of the reasons that justified government actions. Here are some that last: protection against external harms, e.g. nuisances; solution to coordination problems, e.g. public goods and common pool resources; the constraint of monopoly, e.g. rate regulation and antitrust laws; and the protection of minors and incompetents.
That is a pretty solid summary of how the limited state libertarian looks at the world, and when we flash forward to the morals questions, the dilemma is real. If we stick to our theoretical guns, then a prohibition on sex marriages cannot be justified on any of these heads. So it has fall, even as a constitutional matter.
Now it is possible to block this maneuver by the insistence on the "traditional" before "liberty," but it is much harder if one is trying to make sense out of doctrine. I might also add that the antidiscrimination laws for private homes and ordinary businesses (not common carriers) was always to recognize the right to exclude. I am quite happy to take on the antidiscrimination laws in employment. My question is how should the traditionalist respond to the Boy Scouts, or to the general antidiscrimination laws. I think that they should want to strike them down. The moral: even within tradition it is hard to keep to judicial restraint if the logic of a constitutional approach. Once this can of worms is opened up, it is difficult to get all the worms to crawl in the same direction.
I agree that his moral is the key sticking point. But it also seems to me that ensuring judicial restraint is the key sticking point of any theory of judicial review. Indeed, the strongest argument for democratic majoritarianism may be the impossibility of achieving judicial restraint, as it is not clear to me that judicial restraint is any more easily obtained under a constitutional libertarian theory either.
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