Dahlia, Judge Posner,
You both rightfully zero in on the marriage-equality dissenters’ puzzling rage that this issue was decided by a “bare majority.” The implication here, I think, is that however invalid gays’ constitutional right to marry may be in the first place, it’s made even more invalid by the fact that it was decided by a 5–4 vote. Justice Clarence Thomas, in particular, seems enraged that the court, by such a slim margin, announced a right to dignity—even though “the Constitution contains no ‘dignity’ Clause.”
I’d like to focus on two cases, also decided by a 5–4 vote, that announced a new constitutional rule that is truly unsupported by the text of the Constitution.
First, and most glaringly, there’s Citizens United. In that case, the court overturned a century of law—by the slimmest possible margin—to hold that corporations have a First Amendment right to spend unlimited sums of cash on electioneering. Yet the First Amendment contains no Unlimited Spending Clause asserting that corporations may dump as much cash as they please into elections. Rather, it contains a Free Speech Clause guaranteeing only “the freedom of speech.” In deciding Citizens United, the conservative justices determined that spending money qualifies as speech, and that limitations on the use of that money violate corporations’ “freedom of speech.” This logic is, at best, a tenuous extrapolation from the text and meaning of the First Amendment. Still, the court’s conservatives did not hesitate to force their dubious rewrite of the Free Speech Clause onto the country.
Second, we have the notorious Shelby County v. Holder. In Shelby County, the court invalidated a key provision of the Voting Rights Act, which required historically racist states to get federal permission before altering their voting procedures. Chief Justice John Roberts rooted his decision—another 5–4 one, note—in “the fundamental principle of equal sovereignty” of the states.
Judge Posner, as you and Eric Posner explained two years ago, that supposedly bedrock constitutional principle does not exist. At best, it may be gleaned—just barely—from the penumbras of several different provisions of the Constitution, none of which use the words “equal sovereignty.” Roberts and his fellow conservatives invented this principle, leaning on the emanations of other, somewhat random clauses, to imagine their way to a ruling. In the process, Roberts struck down a law that had been recently reauthorized by Congress (98–0 in the Senate, 390–33 in the House) and signed by the president.
Now consider the constitutional right to dignity. Thomas is right, of course, that the Constitution does not explicitly declare such a right. It does, however, assert that the government may not deprive any person of “liberty” without “due process of law,” and guarantees every person the “equal protection of the laws.”
To my mind, it is not far-fetched to believe that these two provisions, working in conjunction, promise every person a certain degree of individual autonomy walled off from interference by the state. Nor does it seem unreasonable to refer to the collective components of this autonomy as “dignity.” The court frequently invents terms to describe in shorthand a complex set of rights. (Think of the “freedom of expression,” which every justice accepts as right yet which does not appear explicitly in the Constitution.) Why shouldn’t the court describe the 14th Amendment’s guarantees of liberty and equality as creating a right to dignity?
I no longer expect consistency from the four marriage-equality dissenters. But I would appreciate a bit more honesty. As you say, Judge Posner, the history of constitutional law is the history of the Supreme Court imposing new rights on the entire country. Every justice on our current court continues that tradition when the end is one they value. They might at least admit they’re playing the game.