There are so many different angles and questions wrapped up in this topic’s leading question that it requires some disentangling before we can get into substantive claims about how to answer the question. We have no shortage of disagreement about how Christians should think about public policy, let alone how the Constitution should inform this thinking. Christians have a two-thousand year history of disagreement about how to interpret and apply the Bible, and Americans have been wrestling with how to interpret the Constitution for 228 years. Moreover, much depends on how we understand the purposes and functions of a constitution in general, and then the specific content of the U.S. Constitution in particular. There are a lot of moving parts. Unlike some of the other topics under consideration in this series of Respectful Conversations, it’s not obvious at first what a traditional and a progressive approach will have in common and on what points they will differ. I will proceed by laying out a series of claims—some descriptive and some normative—that will move from the general and hopefully less controversial to the more specific and probably contested. I’m grateful to have this opportunity to think together with Kathy Lee about these matters.
One way of making our topic manageable is to clarify what I won’t be doing. I won’t be repeating the case for what I take to be the most faithful Christian approach to the question of sexual identity and behavior. Insofar as scripture is the most authoritative norm for determining what genuine Christian thinking is, we have already had that discussion in the second conversation. Just to lay my own cards on the table, I think Professor Strauss is right to identify orthodox Christian sexual ethics with chastity in singleness and marriage as a lifelong and exclusive union between one man and one woman. Yet biblical understandings do not necessarily yield straightforward conclusions as to what a Christian should advocate in a pluralistic public square with regard to public policy. Thus we have an entire conversation dedicated to that question next month, and so I also won’t be making the public policy case for traditional or conjugal marriage, though I do have views on the matter.
We can think of the biblical discussion as a way of articulating certain grounding truths about human nature and its purposes with regard to sexuality. We might think of this as a discussion about human ends, the fulfillment of which contributes to God’s vision of human flourishing (whether in marriage or in singleness). The policy discussion, on the other hand, is mainly about means: how best to promote and protect that vision in the many tangible ways that laws and policies touch on and regulate marriage, sex, and family life. What a constitutional discussion does is fill in the gap between the normative ends or purposes and the public policy means. For policy, law, and life together do not occur in a vacuum. They occur in a political community, and the operating blueprint of any political community is its constitution.
What does a Constitution do?
Constitutions do a number of things, but for our conversation I want to highlight three functions. First, constitutions express the vision of what a political community aspires to, and reveals an underlying view of human nature. Whether by stating such aspirations overtly, or reflecting political principles procedurally, constitutions by their nature affirm some ways of living together and close off or deemphasize others. They are normative documents, and those normative commitments can be expressed in different ways.
Second, constitutions allocate power by authorizing various political entities at varying levels to exercise that power. Of course, constitutions also limit power. They codify at the highest political level what government office or structure decides what, how that office is filled, and how the relationships between different political actors are defined.
Finally, and somewhat paradoxically, constitutions are comprised of laws that create the mechanisms whereby we create more laws. Many constitutions delineate the means by which we work out regular politics from what we might think of as heightened or super politics. The former would be rules about how everyday legislation is made into law, how elections are conducted, or court jurisdictions drawn; the latter concerns core principles and even changing the constitution itself. Constitutions thus provide frameworks for doing the everyday business of politics, and the extraordinary business of Politics. The former involves working out the details of our political values and commitments. The latter involves substantively changing a commitment or taking radical measures to protect a threatened value or principle.
I want to make two observations at this point. First, given this basic description of what constitutions do, we can see how it is a challenge to address how any given constitution should inform Christian thinking. The short answer is “it depends.” It depends on what our Christian faith tells us about the purposes of government, and how well those purposes match up with the normative aspirations of any given document. It also depends on how well the practical mechanisms of the constitution achieve or make possible the achievement of those political ends. Evaluating the compatibility of ends is a matter of theological and biblical ethics, and political philosophy. Evaluating the efficiency of means is a prudential task for political science (not, however, just for political scientists!). To the extent that a constitution facilitates ends that are consistent with what our faith tells us about politics, and to the extent that the framework achieves some level of success in a political process that promotes justice and the common good, Christians should support and work within the system to love their neighbors through the political process. To the extent that the ideals are misguided and even antithetical to human flourishing, Christians should not be informed by but attempt to transform (witness to, change) a constitutional system through both ordinary and extraordinary politics.
The second observation is this. Constitutions are one of the key components of a political tradition. Traditions, as political philosopher Alasdair MacIntyre tells us, consist of some convictions that are not up for grabs, and other beliefs that can and should be debated. A constitution, then, enshrines some principles as constituent of what makes the tradition what it is (to change such convictions would be extraordinary politics, even a version of regime change), and also regulates how we disagree about regular political matters. Because politics means robust disagreement about the ends and means of our vision for the common good and human flourishing, constitutions provide the rules for what counts as resolving those disagreements, and even rules for how to change those rules. One necessary (but not sufficient) condition for a healthy political order is widespread acceptance of the legitimacy of the political process for determining winners and losers in debates about public policy. A constitution includes the ways in which we agree to resolve our disagreements. When faith in the legitimacy of that process dwindles, the bonds that make a common civic space weaken, cynicism grows, and politics becomes in reality what many already fear it is by definition: an intrinsically ruthless contest of power versus power, a real life enactment of Kevin Spacey’s nihilistic House of Cards. We will return to this point.
What about the American Constitution?
The American Constitution is the oldest written constitution in continual use. The hope of those who framed it was that Americans might be the rare exception as a people who might “[establish] good government from reflection and choice” rather than “depend, for their political constitutions, on accident and force.” (Federalist 1). Speaking to the aspirational nature of the Constitution, Lincoln described the Constitution as making possible the ideal of “liberty for all” as expressed in the Declaration of Independence. The Constitution is a frame of silver, meant to adorn and protect the apple of gold, the possibility of freedom and hope and prosperity for all Americans.
While the Constitution certainly has aspirational language in its preamble, it reflects principles and assumptions about human nature in its procedures and even in its seemingly “small politics” restrictions. The Constitution includes general language about equal protection of the laws, due process, and the free exercise of religion—all of which require interpretation and application— as well as very specific and rather straightforward prohibitions of titles of nobility and government-mandated guest rooms in private homes for soldiers. All of its provisions, and the changes that have been made since its adoption, make claims about who we are, what political convictions are near-sacrosanct, what is arguable, and how we settle those arguments.
I want to make three observations about what the Constitution sets up with regard to these arrangements and the making of public policy. First, the Constitution creates a federal government with delegated powers while recognizing that the states have “police powers”. While still recognized in theory if often ignored in practice, the doctrine of delegated powers means that the federal government is not authorized to act unless the action can be legitimately tied to some constitutional provision. This doctrine is why Thomas Jefferson agonized over whether he had the warrant to make the Louisiana Purchase, and it is why Lincoln’s Emancipation Proclamation was tied to his constitutional identity as commander-in-chief. States, on the other hand, can act for the sake of health, safety, and morals without an express constitutional warrant. In short, the federal government cannot do anything without express permission and the states can act freely except where explicitly forbidden. This division of power reflects the conviction that the federal government should be tied to what the people’s representatives have explicitly ratified in the written Constitution. Anything not mentioned in the Constitution is reserved for the states and the people. This was not a controversial aspect but an indispensable part of the rationale for the Constitution, and it was so important they hammered the point home in the ninth and tenth amendments.
Second, the branch tasked with the creation of legislation is, not to put too fine a point on it, the legislature. That is, our constitution followed the pattern of the states by putting responsibility for the creation of laws and policy into the hands of those most accountable to the people.
My third observation is more a claim about what all this means. What conclusion should we draw from this cursory review of American civics? While clearly not a purely democratic document (see the U.S. Senate), the Constitution presupposes that American citizens are competent to make their own decisions about the common good and how to achieve it. The government, then, is a creature of the people, rather than the other way around. We call our representatives and other government officials public servants for a reason. The corollary to this point about the importance of the people is that we should be very wary when non-representative actors overturn duly enacted decisions of the people, whether made directly by popular referenda or through the votes of their representatives in Congress or the state legislatures.
A Contested Conclusion
Some of you reading this now see where my musings have been leading. And yes, I do believe the Obergefell decision of this last summer is an egregious example of Supreme Court judges substituting their own moral judgments about the common good for the duly enacted laws passed by the people of Tennessee, Michigan, Kentucky, and Ohio, and every other political community committed to traditional marriage. But put that aside for a moment, if you can, because the burden of my argument in this essay is that Christians (and everyone else) should have a problem with Obergefell and other cases like it, because of what it does to the prospects of our shared civic community (that’s not the only reason to have a problem with the case, but that’s a different essay).
For there is a prior question to that of what outcome we would like to see, and this is the issue I mentioned previously. What rules do we agree upon for the resolving of those things we disagree about? The default and constitutional method for resolving our incompatible visions for promoting the common good is voting, and that is done by representatives who are accountable for their votes. Whatever our cause, when we lose in the legislative arena we can at least take solace in having had a fair shot, or even a long shot. We can regroup, reorganize, and perhaps rethink our position and our tactics. We can back another candidate, or another legislative route to our policy goals. We’ve not only had our say, we can try again. We agreed to the process in the beginning and though disappointed, we can accept the outcome because the risk of losing is the price we pay to live together in relative peace in a pluralistic political community.
The same does not hold true when unelected judges invalidate the democratic deliberations of the people. Justices are not up for election, and for good reason. Lawsuits are not easy to organize, nor is there any guarantee that they will survive the judicial gauntlet to make the Supreme Court’s docket. Supreme Court opinions also do a very poor job accounting for the unintended consequences of their anti-democratic rulings, and this in part because courts are very poor legislatures. Real legislatures can uphold the principles of the winning side while taking into account the legitimate concerns of the other side. Real legislatures can come to principled compromises.
Does this come across as a partisan or “conservative” concern? I hope not. For my progressive friends and neighbors, consider the following quite plausible scenario. The election of 2016 yields a Republican president and maintains a Republican Senate. By the time the new president is sworn in, Stephen Breyer will be 78, Anthony Kennedy and Antonin Scalia will be 80, and Ruth Bader Ginsberg will be 83. Pardon the morbid thought, but imagine a Republican president with the opportunity to place one, two, or more justices on the Supreme Court, leading to a solid conservative majority. Now consider how you would like that progressive nightmare of a court to reason about their decisions when democratically enacted legislation that you favor makes its way up through the lower courts to the Supreme Court. Should such a court act with some deference toward the blue state legislatures most likely to clash with conservative political preferences? If so, is this because this is what courts should do as courts, or should this principle of deference to the people’s representatives only apply to conservative courts? One way of answering this question makes possible a shared political culture in which each side can play the game. The other answer seems to me to be a high stakes version of “Heads I win, tails you lose.”
Consider the reasoning of Windsor, which struck down the part of the Defense of Marriage Act that hampered progressive state policy on same-sex marriage. Justice Kennedy noted in that decision the federal government cannot “put a thumb on the scales and influence a state’s decision as to how to shape its own marriage laws” and thus ruled in favor of progressive same-sex marriage policies in several states. Such a principle was nowhere to be found in Obergefell, also authored by Kennedy, as the federal government put its entire fist down on several states which had defined its marriage laws differently. I should note one doesn’t have to be a traditional marriage advocate to find this opinion weak or even worse. We might struggle with the hard cases of how to understand freedom of speech, but there is no doubt that there is a tangible concept there to consider and apply. There is no plausible way to determine that there has been a right to same-sex marriage in the Constitution lying dormant, undiscovered, and unimagined until this last summer.
But surely I have skipped an important step, haven’t I? If the courts aren’t supposed to overturn bad decisions by legislatures, what are they supposed to do? What about Marbury v. Madison? What about Brown v. Board of Education? What about all those times the Supreme Court stepped in and righted the wrongs enacted by a misguided or wicked legislature? Surely those core commitments enshrined in the Constitution—those fundamental rights—are too important to be voted on. It is the job of the Supreme Court to protect the people from themselves.
Not quite. For one, for every Brown v. Board we have a Korematzu, or a Dred Scot, or a Roe v. Wade. There is nothing in our Constitution, our political history, or in any study of human nature I am aware of that shows that legally trained judges are any more capable of getting a moral question right than the rest of us. It’s also unclear how a court decision escapes the objection to voting on fundamental rights. Nine justices voting is still voting.
There is a sense, however, in which the Supreme Courts is tasked with protecting the people from themselves. Yet it is not in their own name, but rather in the name of the people who enshrined those fundamental principles when engaging in constitutional Politics. The task of the judge is to weigh decisions and policies of the people by the standards ratified by “We the People,” and doing so well requires interpreting the language and meaning of the clauses that we actually find in the Constitution. It also so happens that such interpretation is what judges are trained to do.
Of course, this itself is a controversial view of what justices should be doing in their deliberations. And fortunately even those on opposite sides of this question on the Supreme Court itself can model respectful conversation and even friendship. But this is one way I would answer the question of how Christians should be informed by our Constitution on these debates about public policy. Decisions like Obergefell gravely erode the possibility of civic and civil discourse because they undermine our trust that our constitutional principles are actually principles, and not rhetorical building blocks for a policy preference that is already determined by someone who has not been authorized to make that judgment. As Lincoln said in his First Inaugural:
[I]f the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.
We should expect our public servants to respect the decisions made by ourselves and our representatives. We should hold our courts to the highest standards when they are asked to review current law by strict requirements of constitutional law. Whatever our political principles, we should object when the rules by which we have agreed to resolve our disagreements are changed mid-stream by those unauthorized for the task. We should respect those on the other side of our political arguments by competing in the legislature and in the court of public opinion, not short-circuiting the democratic process and effectively saying to our neighbors who see things differently, “The rules work for me, but not for thee.”