Noah Millman

Who Is the Left-Wing Equivalent of Donald Trump?

66ème Festival de Venise (Mostra)
66ème Festival de Venise (Mostra)

Kevin Drum asks:

Is there anyone out there who could be the Democratic equivalent of Donald Trump? There was some inane blather earlier this month comparing him to Bernie Sanders, but that was always pretty preposterous. Sanders is a serious, longtime politician. He may be too extreme for you, but he’s not a buffoon.

More specifically: Is it even possible that someone like Trump—no political experience, buffoonish, populist, boorish—could ever make a big impact in a Democratic primary? It’s never happened before, but then, it’s never happened quite this way in the Republican primary either. It makes me wonder. What if Trump had held on to his lifelong liberal beliefs instead of “evolving” so he could compete as a Republican? What would be the fate of a liberal Donald Trump? Would a big chunk of the liberal base embrace him?

I don’t know how he’d poll, but I know who my nominee would be for the post. With Hillary Clinton looking shaky, and the GOP in chaos, this may his best chance for him to give the idea a whirl. Anybody want to see what his publicist thinks of the idea?

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War, Religious Liberty, and Priorities

Alan Jacobs is worried whether voting on a single-issue basis to protect religious liberty is overly selfish for a serious Christian politics:

While I am, as I have often demonstrated right here on this site, a vocal supporter of religious freedom, I’m also rather uncertain about how my religious convictions should affect my political decisions. The problem arises if we distinguish between individual and collective Christian action.

On the individual level, I know what I am supposed to do: if someone slaps me on one cheek, I should offer them the other; if someone takes my shirt, I should offer him my coat; if someone curses me, I should bless him; I should always seek the well-being of others in preference to my own. (Of course, this is not to say that I actually do what I know I should do.)

If that logic holds in the collective sphere as well, then perhaps Christian churches should not focus too much attention on what is best for them, but on what is best for their neighbors. They might have good reason, in that case, to accept constraints on religious freedom if that meant preventing unnecessary violence, death, and destruction from being unleashed on others.

Now, some Christians might also argue that the Church exists for others, so that promoting religious freedom, even at the cost of lives lost overseas, is still the selfless thing to do. And that could be right, but I think we all ought to be very wary of arguments that provide such a neat dovetailing of our moral obligations and our self-interest.

I honestly don’t know what I think about this, and still less do I know how to apply the proper principles to our own more complex political scene. But I do think it’s right to conclude that there are at least some potential circumstances in which religious believers, in order to be faithful to their religious traditions, would need to refrain from direct political advocacy for those traditions.

I’m pretty sure I don’t agree with the underlying premise that voters should aspire to cast their ballots in a selfless manner. Indeed, I think “selfless” is a red-herring. The objective oughtn’t be to deny the needs or wants of the self, but to see beyond them, to feel other selves as equally worthy of care (and yourself as equally unworthy of supremacy), and thereby to achieve a feeling of solidarity with those other selves. (Then again, I’m not a Christian, so your mileage may vary.)

I also think that, from a purely selfish or an enlightenedly-selfish perspective, there are arguments on both sides of this one. (I will take as a given Jacobs’s premises that there are real threats to religious liberty, and that there are real threats of unnecessary and destructive war, and that there’s a real difference between the two parties on both points – all debatable premises, just not ones I’m going to debate here.) Christians – men and women from communities like his – will be the ones unleashing that unnecessary death and destruction Jacobs fears. They will suffer – possibly from injury or death, but also from being required to become killers. Which is worse: to tell 100 people they will lose their jobs if they do not conform to new social norms to which they have religious objections – or to tell 10 people they will be sent to prison if they do not kill a host of strangers when ordered to do so?

Thinking less-selfishly, there are also points on both sides. Jacobs presumably believes that these unnecessary wars are deeply harmful to the collective economic, political and spiritual well-being of the country. He also presumably believes that efforts to exclude traditional Christian believers from full-participation in the civic life of the country is harmful to the country’s well-being. And unnecessary wars and religious persecution alike tear at the fabric of the civil compact that holds the country together.

I think it’s a mistake to try to find a trump card in these kinds of situations. Or, rather, the trump card may not be the issue that is objectively most important either to your own self-interest or some more enlightened conception. It’s going to be the thing that you simply can’t swallow, no matter how hard you try. In that regard, and to tip my hand about how I’d decide the question, let me make two analogies.

First, I get a decent amount of flack for writing for this website from friends who can’t understand how I could affiliate with a publication founded by Pat Buchanan. And I can explain myself in part by talking about all the ways that the magazine has changed since those days, and also by saying that, when I signed on, I warned the editor that I was “off-side” on a huge number of issues versus where the readership was, and was reassured that the magazine had no “line” and that I’d be free to write what I wished. I signed on because, even though I no longer particularly considered myself to be “on the right” or “conservative” in any meaningful political sense, I thought it was exceedingly important that there be a voice from that quarter standing against the militarism that was overwhelmingly dominant in the American right. And I made that decision in spite of the fact that the faction of the right that is most-friendly to anti-war arguments has, historically, also been least-friendly to the interests of my own people. With, in the 1940s, genocidal consequences. I just decided that this isn’t the 1940s.

And a second analogy. Before 1948, the United States army was segregated. Thousands upon thousands of African-American citizens served with distinction in an army that explicitly regarded their citizenship as second-class. How would you rank their dilemma against the dilemma Jacobs describes? And how would you explain to a veteran of that period, who swallowed that humiliation to serve his country, that you could not vote for the peace candidate because of his party’s treatment of your people, but would rather see his grandson fight for an unjust cause?

I can’t think of a good answer.

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Why Not Trump?


I must have been in a strange mood yesterday.

I never seriously considered the Donald in, well, any capacity. (As in: I literally have barely ever thought about him over the past 30 years, and never seriously.) And for months I was convinced, along with most informed observers, that Trump was a vanity candidate who would go nowhere — or, at best, would make a Herman Cain-style lunge for the brass ring then crash to Earth well before any voting takes place.

But the scales have fallen from my eyes. And in the interests of spreading the blessings of enlightenment, I ask the question again:

Why not Trump?

And, in what follows, I take apart one by one the various answers I came up with to the question.

To be clear, I’m not going to vote for Trump, ever.

But why not?

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Mobs Have No Principles, Hacker Edition

Fredrik deBoer thinks the Ashley Madison hack is the latest proof that the left hasn’t really won the culture war:

Since at least the landmark Supreme Court decision that legalized same-sex marriage across the United States, it’s been trendy to say that the culture war is over. With acceptance of gay love now ubiquitous, with trans rights taking center stage, with even traditionally conservative culture like sports increasingly accepting of gender and sexual differences, many now presume that social conservatism, as a mass political phenomenon, is in permanent retreat. Indeed, some prominent social conservatives have been debating the “Benedict option,” which entails a retreat from public life by social traditionalists. Left and right both seem to agree that the battle is over.

With the recent leak of massive amounts of data from infidelity-enabling, though, and Gawker’s notorious naming and shaming of an obscure, married publishing executive who attempted to hire the services of an escort, we might well ask: if the culture war is over, who really won?

That social conservatism lost seems inarguable. Gay marriage was the hill that the forces of social conservatism were willing to die on, and die they did. . . . And yet I can’t help but feel that social liberalism hasn’t exactly won, either. Once, a central pillar of progressive attitudes towards love and sex was the right to be left alone, the right to have privacy, the right to undertake adult behaviors that others might not agree with but which nevertheless must remain permissible. That version of social liberalism—the one associated with tolerance and personal freedom—seems almost as dead as the religious traditionalism that we’re so eager to discard.

To which I can only ask: what makes you think the hackers are indicative of any political tendency at all?

There is a liberalism of principle and a liberalism of temperament, and I think deBoer is confusing the two here. A liberal temperament is pretty much diametrically opposed to the kind of outing and shaming involved with these kinds of hacks, regardless of the underlying politics. Whether we’re talking about outing closeted gay people or anonymous racists – or, for that matter, making public the names and physical addresses of the kinds of people who execute these kinds of hacks – there’s nothing liberal, from a temperamental perspective, about the activity.

But a liberalism of principle is as subject to perfectionism as any other politics is. And it’s easy to see how perfectionism can lead to justifications for all kinds of invasions of traditional zones of privacy and immunity. Slum-clearing was a project with considerable liberal backing; so was forced school busing; so is yes-means-yes. All of these are noble-intentioned projects that substantially invaded such zones.

Moreover, it would not be hard to construct a left-wing attack on Ashley Madison. What kind of men have the resources to avail themselves of the opportunities provided by such a site? Who benefits and who suffers most from the aggregation of this kind of data on “availability”? What does the existence of a site like that do to the power dynamic within most marriages? I’m not endorsing that kind of critique (nor am I getting into the thicket of ranking adultery itself in the table of sins – though I may do that at another time). I’m just pointing out that such a critique can certainly be constructed, and shouldn’t be dismissed with mere hand-waving.

And that is precisely why it’s important to keep the two questions separate. You can embrace a left-wing critique of an entity like Ashley Madison without being a neo-Victorian moralist. But you can also be a neo-Victorian moralist without embracing mob “justice.” And that is what is being enacted with the Ashley Madison hack – something essentially illiberal in temperament (as mobs always are), but also something completely lacking in principle of any kind, and motivated instead by base emotions like envy and schadenfreude (as, again, mobs always are).

The mob may well be winning the culture war. But that is not merely a different front from the one deBoer (and the rest of us) are talking about when we discuss gay marriage, or abortion. It’s a different war altogether. Because no principled politics of any kind, whether moralistic or libertarian, can safely or in good conscience rely on the mob.

UPDATE: oh – and this news story is of obvious relevance to “The Runner” – yet another reason to go see it!

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Home News: The Runner

Nicolas Cage plays a self-deluded idealist in "The Runner," directed by Austin Stark
Nicolas Cage plays a self-deluded idealist in "The Runner," directed by Austin Stark

Time for unabashed self-promotion again. The second feature film I was involved in producing – “The Runner” – has been taking up a bunch of my time and emotional energy lately. And it’s now available to view at home via all the usual outlets – cable and satellite video on demand, Amazon, iTunes, etc. So y’all have no excuse for not seeing it.

The film tells the story of Colin Pryce, a progressive rising star from a famous New Orleans political family, who gets kneecapped by a sex scandal just as his political career is about to take off. And the story is told against the backdrop of the 2010 oil spill that devastated a region that had just begun to recover from the economic fallout of hurricane Katrina.

The experience of making the film was very important to me – I was much more intensely involved in this one than in “Infinitely Polar Bear” (which, by the way, is still in theaters – go see it while you still can!), so on a purely educational level it looms large. But it also tackles a number of serious themes that I fear get short shrift in most entertainment about politics.

To start, it’s a portrait of a politician that tries to be realistic rather than lurid. Shows like “Scandal” and “House of Cards” are successful for good reason – they are enormously entertaining. But the caricature they paint of American politics may have a pernicious political impact: it encourages the electorate (and particularly better-educated electorate that tends to watch these shows) to indulge in a shallow cynicism that perfectly suits the existing power structure. (I fear that casting Nicolas Cage in the lead may have led some critics to assume that we were aiming to do the same.)

But political entertainment that wears its (generally left-liberal) idealism on its sleeve -from “The American President” to “The West Wing” – even when they succeed as entertainment (as the foregoing certainly do, and as many humorlessly-hectoring films do not) may not be great for the electorate either. Because that idealism is also a great enabler of politicians who know how to channel it for their own ends.

The ambition of “The Runner” is to show us a portrait of the political animal as he really is – someone who believes he believes things, but who is ultimately driven by baser needs. And whose self-image depends on not figuring that out about himself. He’s an addictive personality, in other words, and whether he expresses that through drink or women or not, he most-fundamentally expresses it in the need to run.

And the film then aims to connect this kind of personality to the society that chooses him for a leader, and its own self-destructive economic addictions. And so its cynicism is more comprehensive, in the manner of Ibsen’s Enemy of the People, in that it’s ultimately cynical about us as well as the people we elect. Indeed, you could read the film is a kind of Enemy of the People in which Thomas Stockmann has different self-delusions, and actually cares most about being loved – or as a film about Peter Russo from “House of Cards” in a world manipulated not by brilliant machiavels like Frank Underwood, but by interests who don’t need to be brilliant, because they have actual power.

Perhaps the season of Donald Trump’s rise is the wrong time to bring out a film that takes politics – and politicians – seriously. But hey: when the studios do stuff like that, they just call it counter-programming.

Anyway: check it out. And then you can tell me whether it succeeds in its ambitions.


For the Iran Deal, Against the Conservation of Enemies

State Department photo
State Department photo

Reading Peter Beinart, David Frum and Jeffrey Goldberg’s debate on the merits of the Iran deal, I was struck by something. Take a look at Frum’s list of gives and gets in the deal:

What did the Western world get from the nuclear deal just concluded with Iran?

According to deal proponents—and assuming Iran does not cheat—a delay of about eight months in Iran’s nuclear-breakout time, for a period of 10 years.

What did the Western world give?

1) It has rescued Iran from the extreme economic crisis into which it was pushed by the sanctions imposed in January 2012—sanctions opposed at the time by the Obama administration, lest anyone has forgotten.

2) It has relaxed the arms embargo on Iran. Iran will be able to buy conventional arms soon, ballistic-missile components later.

3) It has exempted Iranian groups and individuals from terrorist designations, freeing them to travel and do business around the world.

4) It has promised to protect the Iranian nuclear program from sabotage by outside parties—meaning, pretty obviously, Israel.

5) It has ended the regime’s isolation, conceding to the Iranian theocracy the legitimacy that the Iranian revolution has forfeited since 1979 by its consistent and repeated violations of the most elementary international norms—including, by the way, its current detention of four America hostages.

That seems one-sided.

Frum’s point is that items 1-5 provide substantial benefits to the Iranian regime, and that therefore, in his opinion, we should have been able to get more for them. That may or may not be true, and my bet is on “not.” It’s worth recalling that none of the other parties to the negotiation favored a more-aggressive approach to Iran. It’s also worth noting that the overwhelming response from people who actually do arms control for a living has been positive – meaning that what we got, assuming what we wanted was arms control, wasn’t nearly as meager as Frum asserts.

But I notice something different. Frum is valuing what our side got based on what it’s worth to us (and undervaluing it). But he’s valuing what our side gave based on what it’s worth to the Iranian regime. And that’s the wrong way to tally a ledger.

The right way is to look at each side independently. What did we gain versus what did we lose. What did they gain versus what did they lose. If you want your deal to hold, you hope that each side decides that their side of the ledger nets out positive. That’s what we call a win-win. And that’s what this deal looks like to me.

It is clear that the United States didn’t get everything we wanted – or everything we initially sought – out of the Iranians. It’s also clear that the Iranians allowed their own red lines to be crossed – they didn’t get everything they wanted either. There was, in other words, a negotiation. But the big picture – an arms control agreement and an end to sanctions and diplomatic isolation – remains what it always was and always was going to be, because that’s what would allow both sides to see a positive sum at the bottom of the ledger.

From my perspective, everything we “gave” to the Iranians was something that benefitted us not at all to retain, because the purpose of the sanctions and the isolation was to get a nuclear deal. Normal relations with Iran should be a positive goal as opposed to something we “gave” in order to prevent Iran from going nuclear.

(I would argue, by the way, that the same is true on the other side of the ledger: a nuclear program, rationally, benefits the Iranian regime very little. But I also recognize that there’s no reason to assume that Iranian ideologues are any more rational than American ideologues, and that Iran has sought to become a nuclear power for reasons of national prestige since the Shah’s time.)

And holding out for more should be tied to a real prospect of achieving more – in other words, real prospect that continued isolation would deliver an Iran that recognized Israel, cut its ties with Hezbollah, etc.

But not everybody does the math that way. A significant number of foreign policy opinionators ascribe real value to making the right enemies. Iran is a self-declared adversary of America’s founded on a revolutionary ideology of political Islam. It engages in international terrorism and hostage-taking. It refuses to recognize Israel. For a significant faction of the commentariat, the United States should stand opposed to a regime like that for deontological reasons. Even if it’s imprudent to go to war with them, we should maintain our posture of enmity. And this deal seriously compromises that posture.

I’m not a pollyanna about the deal. Much analogizing has been made between the deal with Iran and Nixon’s opening to China, but I think the analogy has serious limitations – because who is the Soviet Union? ISIS? I do consider ISIS a serious threat, as well as a nightmarishly horrible regime, because, should it succeed in becoming a functional state, it will exert a radicalizing and destabilizing influence throughout the Sunni world. But that means that it poses the biggest threat not to Iran, but to states like Turkey and Saudi Arabia – which are tacitly or even actively supporting it. And greater involvement by Shia Iran in the war against ISIS is hardly going to motivate those powers to shift to opposition.

Moreover, I am highly skeptical that Iran’s regime would desire, or benefit from, an explicit realignment towards the U.S. And I am equally skeptical that Iranian dissidents will see the domestic opening they hope for as a result of the deal. I believe the Iranian regime is rational and will focus on regime survival first and foremost, and I don’t see why they will feel greater need to placate the opposition after delivering improved economic conditions for the Iranian people. Certainly, China hasn’t felt that need.

So why do I support the Iran deal, strongly? Because, from my perspective, there is a negative value to enmity with Iran and a positive value to an improved working relationship – independent of whether the deal is the best deal possible. Because I ascribe a very positive value to a deal that the arms control community in general considers quite strong, and exceedingly skeptical of criticism from quarters opposed to arms control in general. Because I’m aware that the track record of opponents to major diplomatic agreements is relatively poor in general. And because I think a war with Iran would be a catastrophic folly.

That’s reason enough, no?

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A Technical Note

United Airlines, the New York Stock Exchange, and the Wall Street Journal aren’t the only organizations that have encountered technical turbulence lately: on Tuesday an item was incorrectly published on Noah Millman’s blog due to an error in our system. The problem has now been fixed, and we apologize to Noah and to our readers for the mix-up.

You can find Noah’s latest posts here at: The Necessity of Greece’s Separation and Obergefell and the Pursuit of Happiness.

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The Necessity of Greece’s Separation

When in the course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

The causes, in this case, are fairly clear. The metropole (Brussels/Berlin) demands terms for renegotiation of Greece’s debt that leave Greece politically and economically utterly subservient to said metropole. The Greeks demand more favorable terms that allow their economy to grow again and have some measure of independence.

The Greeks have suffered far more from austerity than the American colonists did under British taxation. And the British metropole had at least as much reason to accuse us of ingratitude: its taxes were imposed to pay for a war waged on the colonists’ behalf, and the British were rather as disinclined as the German bankers are to have the relationship with the crown treated by the colonists as a blank check.

And, as with the American colonies, the remedy is either independence or genuine representation at the metropole. Either the EU needs to remedy its democratic deficit, creating political organs as powerful and responsive to the people as the ECB is to the imperatives of finance, or it needs to shrink from an empire to a club of like-minded states with already synchronized economies.

The difference is that Germany does not want to be an empire. It is more than happy to see Greece go if it will mean the end of their formal obligations and the ability to return to the normal arms-length relations of business (which include dealing with defaults, bankruptcies, etc.—creditors don’t make all the rules in international finance either, just most of them).

The necessity of separation, therefore, should be all the clearer.

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Obergefell and the Pursuit of Happiness

So I’ve finally gotten around to reading the gay marriage decision, and, as (to my reading) it depends more on the Declaration than on the Constitution, July 4th weekend feels like an appropriate time to air my thoughts thereon.

I will admit, when I first heard about the decision I was torn between being very happy about the outcome and not being thrilled about what I understood to be the reasoning. I am not a big fan of natural rights reasoning, not a big fan of substantive due process, not a big fan of sweeping principle-declaring decisions, and not a big fan of Justice Kennedy. I had figured the Court would come to a narrower conclusion that effectively nationalized same-sex marriage based on the Full Faith and Credit clause while still allowing states formally to define marriage as they individually chose. And, I admit, I hoped such a conclusion could garner a six-Justice majority rather than a majority of five, and thus produce something like a social consensus.

But after reading the decision, and re-reading Loving v. Virginia, the key precedent case, I have come to a more meditative conclusion. I understand the logic of Kennedy’s opinion, and see how it flows from the body of precedent – and how, while other decisions would surely have been more conservative, they would still have been innovative. But mostly I’ve tried to be a realist about what those other, alternative decisions would actually mean in practice, and how they would differ from what is likely to flow from Obergefell.

My (partial) defense of Kennedy’s opinion begins with the following thought experiment. Imagine that Loving had been decided the opposite way, upholding miscegenation statutes, and that, in response, an amendment to the Constitution had been passed with the following wording:

The family being the fundamental basis of society, the right to matrimony shall not be infringed.

The passage of this amendment would surely have overturned miscegenation statutes nationally – as it would have been intended to do. It would also have made it clear that prisoners, the mentally handicapped, the carriers of genetic diseases – that none of these can be denied access to matrimony. How, though, would it be applied today in the context of same-sex marriage? How should it be applied?

The answer hinges on the question of what marriage is. At the time of the passage of the amendment, it’s true, only a few would have argued that it encompassed same-sex unions. But in 2015 a great many people thought it did, and many states had come to express that view in their laws (whether prompted by the state-level judiciary or not). Once such a view is current, it becomes necessary for the Court to decide whether or not it is correct – because it is necessary to determine whether the definition of marriage restricting it to unions between men and women is, in fact, an infringement on a fundamental right. This is particularly the case when states have undertaken explicitly to define marriage as exclusively a male-female bond, and not merely done so implicitly.

That’s basically the situation the Court found itself in if it took the Loving precedent seriously. Loving clearly established the right to marry as fundamental, pre-political, and central to the Declaration of Independence’s concept of the “pursuit of happiness.” Note that there is nothing traditional about this idea. Traditionally, marriage was a matter better arranged by your parents than by you, and love was something you hoped would grow within and sustain happiness in marriage as opposed to marriage’s origin. Traditionally and cross-culturally, regulation or prohibition of exogamy has been more the rule than the exceptionLoving certainly didn’t invent the idea of the love match, but it did raise it to the level of Constitutional principle.

Assuming the Court did not want retrospectively to limit the scope of that earlier decision, Loving provides quite firm ground to stand on for rejecting most of the arguments against same-sex marriage, as well as the argument that marriage is traditionally a state-level matter raising no Federal issues. The Court did not have the luxury of dealing with abstractions. It had to deal with individual gay families demanding recognition, and individual states denying them that recognition, and claiming that denial is not an infringement on their rights because the people seeking to marry are themselves confused about what marriage essentially is.

My point, basically, is that the Court, assuming it did not want to limit Loving, was faced with a new question in 2015 presented by new facts. In 1967, nobody disputed that a marriage between a black man and a white woman was a marriage; the dispute was over whether such a marriage could be prohibited for reasons of the purported social good. The Court determined it could not, both because marriage was a fundamental right and because that purported social good (preserving the white race) was not a legitimate state end. In 2015, the Court had to opine on what marriage is in order to resolve whether two men or two women being denied a license to marry were being denied something they were due. It would certainly have been more conservative of the Court to say: we don’t profess to know what marriage is; the states seem to disagree about what marriage is; the debate about the meaning of marriage is relatively novel; therefore we decline to register an opinion other than to demand that various states respect each other’s decisions on the matter (the Full Faith and Credit approach). But that’s not the same as saying it is illegitimate for the Court to decide that it needs to have an answer to the question of what marriage is because there is a fundamental right at issue. Which, per Loving, there is.

And, stripping away the high-flown rhetoric, both about freedom and about the glories of marriage, that’s what Kennedy’s opinion for the Court holds.

What would have been different had the Court held differently? In practice, I suspect not much. Consider first three other possible routes to a similar substantive result. As noted above, the Court could have declined to say anything about marriage, but to require the states to respect each other’s decisions, as they do with differing laws on age of consent, degrees of consanguinity, and divorce. The result would be effective nationalization of same-sex marriage, the only difference being the requirement for some Americans to travel. Undoubtedly at some point in the future this would be deemed an unfair burden on those without the means to travel, and same-sex marriage would be formally nationalized.

Another alternative would have been to declare that sexual orientation is a “suspect classification” requiring more heightened scrutiny for exclusion. This would have been a somewhat awkward way into opening up marriage specifically, since nothing in earlier marriage law actually refers to sexual orientation, but it is at least plain that the intent of the various laws and state constitutional amendments defining marriage as a male-female bond that the intent is to exclude same-sex couples from marriage. The Court has, in the past, declined to define a sexual orientation as analogous to race in this way, and doing so could have far-reaching implications – but many of those implications are being reached anyway by a jurisprudence that declares discrimination against gay people to be “irrational” on its face.

Yet another alternative would have been to strike down traditional-marriage-preservation statutes on the basis of gender discrimination – which was the oldest argument in favor of same-sex marriage, and, not incidentally, the most telling, since the teleological arguments for the necessity of complementarity in marriage all derive from a conception of gender that values essential differences between male and female. Such a finding might also have far-reaching implications, but again, probably not very different from those we face now.

And what about an alternative world in which a five-Justice majority ruled that marriage was the province of the several states, and that radical innovations (like same-sex marriage), did not require recognition under the Full Faith and Credit clause? How long would such a decision last in the face of changing views across the nation? Not long at all, I should think.

Of course, it might be all to the good for the Court to have said: the law doesn’t say this – and to watch the people change it so that it does. I remain very proud of the New York legislature for doing its proper job and changing the law to say what they thought it ought to say.

But to say that the Court stole the people’s limelight is not the same as to say it became a tyrant. We have, for better or worse, gotten accustomed since Carolene Products to a Court that sees itself as the ultimate vindicator of individual rights, and we differ with each other mainly in terms of which rights we want to see vindicated. We the people could change that any time if we wanted to. We just don’t really want to.

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A Busy SCOTUS Week

Anybody even remember King v Burwell? Probably not. But if you are one of the few who still care, my thoughts on the decision – which I very much agreed with – can be found over at The Week.

Most of the piece talks about how King v. Burwell was properly deferential, and why that matters. A couple of paragraphs stand out, though, for having broader applicability.

The difficulty with having the Supreme Court strike down legislation produced by a democratically elected majority cannot be answered by reference to the sanctity of the Constitution. (After all, all branches of government are guided by this document, which, by the way, does not enumerate among the court’s powers the right to strike down legislation.) Nor can it be answered by reference to some hermeneutical rule (originalism, or strict construction, or anything else) that places the court above suspicion — because suspicion is, itself, a social and political matter, not a matter of objective fact.

Rather, the counter-majoritarian difficulty can only be answered pragmatically, by reference to the proper functioning of the government. There are a variety of possible such defenses, some more conservative (e.g., Madison’s defense of the separation of powers) and some more liberal (such as John Hart Ely’s hermeneutic of democratic inclusion). But they all boil down to this: We want the government to work this way and that requires that we have a court that plays this role.

So what about today’s decision declaring that the Constitution requires all 50 states to issue marriage licenses to same-sex couples? Is there any answer to the counter-majoritarian difficulty here?

I’m going to read the decision before opining.

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