In United States v. Windsor, the conservative movement suffered a serious (although not decisive) defeat in the war to preserve marriage. If we are to learn from this defeat, we need (if I may stick with the military metaphor) an “after action report.” That is, conservatives need to ask whether they could have done something different that might have resulted in a different outcome. Although the left has earnestly sought the Court’s decision and the right has resisted it, the right still must, to put it bluntly, ponder whether it shares the blame for this debacle.
First, we need to concede that any blame for this defeat is mitigated by the larger historical forces at work in contemporary America, forces over which conservatives have limited control. Under the conditions of modern democracy, egalitarianism is a kind of moral and social juggernaut that is in some respects almost irresistible. This is the teaching of Alexis de Tocqueville, a thinker to whom American conservatives should constantly recur to improve their understanding of the difficulties faced by any conservative statesmanship under democratic conditions.
Modern democracies, Tocqueville teaches in Democracy in America, love equality above all things. Moreover, the taste for this equality is almost insatiable, because every step of progress that equality makes renders the remaining inequalities all the more prominent to the democratic eye and therefore irritating to the democratic soul. In light of this teaching—and it is confirmed by all experience of democratic politics—conservatives trying to defend marriage against egalitarian efforts to make the institution more “inclusive” will be pulling against the stream.
These truths, though, don’t excuse conservatives from asking whether they’ve lost a battle that could have been won. Tocqueville himself certainly did not encourage such defeatism. While he thought the progress of equality could not be stopped, he did think it within the power of a prudent and responsible statesmanship to direct it, to restrain it from going to extremes that would erode or abolish the natural distinctions that are necessary to any healthy society. Indeed, Tocqueville’s project—to foster an enlightened political leadership capable of controlling democracy’s unruly passion for excessive equality—is predicated on the belief that we retain some power to control the forms that the passion for equality will take.
Moreover, our own experience of American politics tends to confirm Tocqueville’s teaching. Americans are a democratic people. They love equality and are prone to love it uncritically and to extremes, which is to say that they are susceptible to the siren song of dogmatically egalitarian projects like same-sex marriage.
On the other hand, Americans are not just a generically democratic people, but a particular people with a history and culture of which they tend to be proud—a history and culture that includes an understanding of marriage as a union of one man and one woman as husband and wife all at the service of providing children with a mom and a dad. Many Americans tend to revere the founding fathers, and it would go a long way toward restraining their thirst for irrational forms of equality to point out to them that such forms take equality much further than the founders could have intended. Indeed, election returns in many states over the last decade have shown that the defense of marriage can be a winning proposition.
Given these considerations, it is fair to say that despite the impediments caused by our democratic taste for equality, the battle over the future of marriage is winnable.
What, then, have we done wrong?
For the most important clue, we need look no further than the reactions of leading Republican statesmen to United States v. Windsor. Generally they express “disappointment” in the Windsor ruling, but then concede implicitly that it’s the last word on the subject. The fight to define marriage will continue in the states, they say, thus surrendering in the face of the Supreme Court’s claim that the American people have no right to define marriage according to their own judgment for the purposes of their own government, the federal government.
These statements are too weak; they concede what ought not to be conceded. Consider the valuable example of the greatest Republican statesman, Abraham Lincoln, another nineteenth-century figure from whom conservatives should take lessons in the challenges and possibilities of democratic statesmanship. Consider Lincoln’s response to the Dred Scott ruling, his day’s example of unwarrantable judicial activism in relation to an issue of national political importance. That response was characterized not merely by disappointment but by defiance.
Here we must note a distinction that Lincoln himself was careful to observe. He did not question the right of the Court to settle the issue between the two parties. That, he admitted, is the Court’s function. Its resolution of that matter must be respected by all law-abiding citizens.
But Lincoln surely did defy the principle that the Court tried to lay down in that infamous decision. The Court held that Dred Scott was indeed a slave, and Lincoln saw no lawful way to resist that holding, as much as he surely regretted it. The Court reached that conclusion, however, on the grounds that Congress had had no authority to forbid slavery in the federal territories, thus indicating that the restoration of the Missouri Compromise—one of Lincoln’s, and the Republican Party’s, key legislative aims—would be unconstitutional, because the original Missouri Compromise was unconstitutional. This principle, this interpretation of the powers of Congress, Lincoln did not accept but flatly rejected, holding that it was based on insupportable reasoning and on “assumed historical facts” that were “not really true.”
Lincoln’s rejection of the Dred Scott decision’s account of congressional authority was not intended as a mere theoretical exercise. His aim was not to see his counter-argument published in a learned journal. Rather, he made this rejection the basis of proposed political resistance to the Court’s overreaching.
When his great rival, Stephen Douglas, criticized him for refusing to accept the Court’s word as final on this question, Lincoln replied that each branch of the government has a right to its own interpretation of its own powers. He made this argument as a public man who was clearly aspiring to elected office. In other words, Lincoln’s critique of the Dred Scott decision was intended to signal that if he were elected to the Senate, he would vote for the restoration of the Missouri Compromise, regardless of what the Supreme Court had said about its constitutionality.
If Lincoln were to follow the script written by today’s Republican leaders, he would have expressed his disappointment, conceded that Congress had no authority over slavery in the federal territories, and then observed that the fight over slavery would now go on in the territorial legislatures. He would have, in other words, accepted the Court’s claim that the people of the United States and their representatives had no authority over the slavery question. This he did not do.
Conversely, if today’s Republicans were to follow Lincoln’s example, they would mount a sustained critique of the Court’s intrusion on Congress’s authority and would commit themselves to enacting new legislation in defense of marriage, regardless of the Court’s effort to invent hitherto unheard-of constitutional meanings to forbid them from doing so.
The Lincoln example is apt because in our time as in his, more is at stake than the specific policy question at issue. For Lincoln the policy question was the proper handling of slavery; for us it is the proper definition of marriage. Regardless of the specific policy question at hand, however, judicial activism like that in Dred Scott or Windsor is an attack on the core American principle of democratic self-government.
Just as the Taney Court told Americans in the 1850s that they were not permitted to govern themselves on the slavery issue, so today Justice Kennedy and his liberal collaborators on the Court are presuming to tell the present generation of Americans that they have no right to self-government on the question of defining marriage. That weighty question, they are telling us, will be decided by our betters—that is, by them.
Yet this kind of judicial presumption is not compatible with the American promise of popular self-rule. As Lincoln observed in his First Inaugural,
If 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.
How, one might ask, does all this explain how we might have averted the defeat in the Windsor case? After all, the previous discussion has been about how leading statesmen ought to respond to the decision, which presupposes that it has already been made. The answer to this question is that Lincoln’s example shows how responsible political leaders should have been responding all along to the contemporary Supreme Court’s record of moralistic judicial activism, so that they might have deterred the Court from doing what it did in the Windsor case.
Unlike the Dred Scott ruling, the Windsor decision is hardly a bolt from the blue, an astonishing act of judicial legislation from a Court that had previously been characterized by its sobriety and restraint. On the contrary, the Windsor ruling was almost predictable as just the latest installment in an ongoing series of cases in which the Supreme Court has taken upon itself the right to substitute its judgment for that of the people and their representatives on the basis of a fictional constitution. Over the last several decades, the Court has invented numerous hitherto unheard-of constitutional principles: a right to abortion, strict separation of church and state, a right to sexual liberty, and a right of enemy combatants to habeas corpus, among many others.
In other words, anti-democratic judicial activism has become not exceptional but habitual, and this could only happen because our elected leaders have declined to respond to it with Lincoln’s clarity and firmness. Had they done so, there is good reason to think that the Court would have withdrawn to a prudent exercise of its genuine authority.
Consider that even the most dogmatic activists among the justices must know that the Court depends for its influence on the acquiescence of public opinion to its rulings. If the habit of uncritical acquiescence were threatened, such activists would have to ask themselves whether they were running the danger of frittering away the moral authority on which the Court’s power depends.
But the first step toward abandoning the bad habit of uncritical acquiescence would be for leading public figures to reject what the Court has said when it deserves to be rejected, explaining with Lincoln’s clarity the error of the Court’s reasoning and its intrusion on self-government. Such arguments, pressed with sufficient force by sufficiently prominent statesmen, would put the Court in a double bind. On the one hand, if they did not respond to such critiques they would risk the possibility that the public would come to see that they had abused their power. On the other hand, if they chose to respond they would be descending from the pedestal on which they had been placed by the public’s former habits of excessive deference. In either case, the Court would be forced to pay an institutional price for its activism, a price it has not in the modern period been asked to pay. The imposition of that price might well have taught the Court to moderate its ambitions.
One can easily predict the reaction to this line of argument that would be given by many of today’s public officials: it is too radical, they will say, too extreme, to defy the Court in the manner suggested. But such a course can only seem radical to those who are not all that interested in preserving self-government, and who by their lack of interest show themselves to be anything but the heirs to Abraham Lincoln, even if they do happen to belong to the same political party. Lincoln would not surrender even one issue on which the people had a right to govern themselves. Why should we surrender in the face of an ongoing erosion of the right of self-government that shows no signs of stopping if it is not opposed?