When A Right Becomes A Right

For generations, hell even millennia, legal scholars and philosophers have argued about what makes law, where it comes from, and what makes a just law. Natural law theorists posit some higher form of moral obligation (usually, though not necessarily, related to God) through which they filter such questions. Legal positivists, on the other hand, focus on the process and ask whether the way in which a law in enacted renders it just.

Both views have their problems (How do we divine this higher obligation? What about objectively evil legal regimes, like Nazi Germany’s, that nonetheless comport with positivist procedural ideals?), which is why I tend to think of myself as a legal realist. That means that the only real issue in what determining what the law “is” has to do with what the people invested with the authority to make it, interpret it, and enforce it say it is. The question of good versus bad, right versus wrong, just versus unjust, is completely separate from issue of what the law is. To use but one example, I consider our modern Fourth Amendment jurisprudence to be profoundly unjust, but it is what it is.

That debate came to mind listening to the Supreme Court oral argument in the Prop 8 gay marriage case earlier this week. At one point, Justice Scalia tried to pin down Ted Olson on, if there is a constitutional prohibition against discrimination in marriage based on sexual orientation, when did it come to be (via)?

JUSTICE SCALIA: I’m curious, when -­ when did — when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? Sometimes — sometime after Baker, where we said it didn’t even raise a substantial Federal question? When — when — when did the law become this?

MR. OLSON: When — may I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools.

JUSTICE SCALIA: It’s an easy question, I think, for that one. At — at the time that the Equal Protection Clause was adopted. That’s absolutely true. But don’t give me a question to my question. When do you think it became unconstitutional? Has it always been unconstitutional? . . .

MR. OLSON: It was constitutional when we -­as a culture determined that sexual orientation is a characteristic of individuals that they cannot control, and that that -­

JUSTICE SCALIA: I see. When did that happen? When did that happen?

MR. OLSON: There’s no specific date in time. This is an evolutionary cycle.

Scalia’s game, of course, is tied to his particular mode of interpretation that stresses the original meaning of constitutional provisions. Thus, if it didn’t violate the Constitution in 1868 to ban gay marriage neither does it today. Amend the Constitution, would be Scalia’s druthers.

The problem with that view is that it overlooks how courts work in the real world and how they have worked in the past. For example, a major issue in the Prop 8 case is whether the Court even has jurisdiction to hear the case at all, given that the people taking the case to the Court aren’t the state of California or its elected representatives. That’s because Article III requires there to a be a live “case or controversy” for federal courts to exercise jurisdiction. Unlike top-level courts in some other countries, the Supreme Court can’t issue advisory opinions – it can only decide live cases brought before it. If nobody asks the court to resolve the question, nobody really knows whether something violates the Constitution or not.

More problematically for Scalia’s position, I think, is what the Court frequently reverses course on whether something violates the Constitution or not. It’s not important, or even earth-shattering, that the Court might get something wrong before it gets it right, but ask yourself what, in the interim, is the law? It’s what the Court says it is, rightly or wrongly.

Take, for example, two situations arising out of the Fourteenth Amendment’s guarantee that not state shall:

deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

First, there’s the issue of racial segregation. In 1896, in Plessy v. Ferguson, the Court held that racial segregation did not violated the equal protection clause, yet in 1954, in Brown v. Board of Education, the Court held just the opposite. What had changed in the intervening 58 years? Not the text of the Fourteenth Amendment nor the intentions of those who drafted it. Society had changed, the Court had changed. It had evolved, even.

The same thing happened with interracial marriage. In 1883, in Pace v. Alabama, the Court held that the state’s law against miscegenation – which included criminal penalties, not just civil regulations – did not violate the equal protection clause. Yet, in 1967, in Loving v. Virginia, the Court held just the opposite. Again, what had changed?

There’s an even more recent example with which Scalia is familiar. For more than two centuries the understanding of the Second Amendment in most legal circles was that it protected only a collective right related to militia service, not an individual one. The scholarship on the issue began to turn in the late 20th century and, in 2008, the Court (with Scalia writing the opinion) held, in District of Columbia v. Heller, that it was an individual right that the Second Amendment protects, not a collective one.

So, the question for Scalia and others who worry about when a right becomes a right is whether the individual right to possess a firearm existed before 2008? Did the right to be free from racial discrimination exist before 1954 or 1967? If they did exist, but the Court was wrong in not recognizing it, than what good does it do to identify the right as existing back then?

Going back to the whole legal realism thing, I’ve never been a fan of thinking about rights as things that exist outside the legal/social structure of a particular place. Some things nobody can take away – nobody can make you think certain thoughts or keep you from doing so. On the other hand, the state can certainly down on what you can say in public and keep you from disseminating your ideas. In such a situation references to a free-standing universal right to free speech seem pointless – if you can’t exercise that right, does it really exist?

Which brings us back to Scalia’s basic question – when does a right become a right? The simple answer is when you and your Brethren or Congress or state legislatures or courts decide it does. There’s nothing magical that occurs then, no mystical event. It just means that someone can actually take advantage of the right existing. Until we reach that point, there’s not really anything to walk about.