Perry, Hayek, and Immanent Critique
I don’t have any inside gossip on Perry vs. Schwarzenegger, whose decision will be announced this afternoon. For that see bmaz, who calls it for the plaintiffs.
As I’ve said in the past, I’m a pessimist either way. I expect that whatever the outcome, Perry will ultimately deal the cause of same-sex marriage a fatal blow. Either the U.S. Supreme Court rules for the defense, settling the matter, or they rule for the plaintiffs, in which case we will immediately get a Federal Marriage Amendment, also settling the matter. Perry, or any other court case, just isn’t going to convince people. Convincing is going to take time, more contact between straight people and gays and lesbians, and more work to stop the pernicious myths that are wielded against us. Perry denies us the time that we need, which is why I look with dread on every development in the case.
At times like these, I turn to my books. You’re welcome to follow me if you like.
It’s often said that same-sex marriage represents a radical break with tradition, a turn no one who values Burkean or Hayekian social thought ought to take. But it’s not really precise to equate Burke and Hayek, however much they do resemble one another. Where Burke stood most clearly for gradualism, Hayek stood for something slightly different — immanent critique. Immanent critique is often gradual, but it need not always be so.
Here I’ll explain what immanent critique means, and why immanent critique often but doesn’t always imply adherence to tradition. Then I’ll show that the case for same-sex marriage really is one made by way of immanent critique — and thus potentially, though not necessarily, permissible to a Hayekian. At any rate, it can’t be rejected as failing to develop organically from the norms and values of the existing society. It may fail for other reasons, but not for this one.
The distinction between immanent and radical critique is I believe fundamental to understanding Hayek. Let’s begin with the latter.
Radical critiques propose to remake society according to an abstract rule or set of rules, one alien to the society itself. In practice these rules are often plucked from the brain of some continental philosopher — Marx, Hegel, and Rousseau being the usual suspects. What we know, or what we think we know, is declared to be either the product of a false consciousness or of a systematically corrupt society. Our previously built-up knowledge needs to be rejected in the name of moral regeneration, authentic consciousness, or the realization of a previously hidden universal truth.
Immanent critique works very differently. Immanent critique takes the institutions, values, and ideals of a given society and proposes to shuffle them around a bit, with the intention of making our social practice more true to what we profess to want in the first place. This can be done either by modifying an existing institution or by rearranging our scale of values, or both, while generally leaving the highest values, or the ideals to be furthered in the longest term, intact. Immanent critique tends overwhelmingly to be about means rather than ends. How do we achieve the type of society that we say we want? Which values win, when values conflict? How do we craft institutions that actually deliver what we seek? The answer is never mere traditionalism, because tradition is always imperfect. Values are always in some degree of conflict.
Hayek writes,
If a judge is committed to maintaining and improving a going order of action, and must take his standards from that order, this does not mean, however, that his aim is to preserve any status quo in the relations between particular men. It is, on the contrary, an essential attribute of the order which he serves that it can be maintained only by constant changes in the particulars; and the judge is concerned only with the abstract relations which must be preserved while the particulars change. Such a system of abstract relationships is not a constant network connecting particular elements but a network with an ever-changing particular content. (Law, Legislation & Liberty vol I, p 120)
And,
When we say that all criticism of rules must be immanent criticism, we mean that the test by which we can judge the appropriateness of a particular rule will always be some other rule which for the purpose in hand we regard as unquestioned. The great body of rules which in this sense is tacitly accepted determines the aim which the rules being questioned must also support; and this aim, as we have seen, is not any particular event but the maintenance or restoration of an order of actions which the rules tend to bring about more or less successfully…
[W]e do not maintain that all tradition as such is sacred and exempt from criticism, but merely that the basis of criticism of any one product of tradition must always be other products of tradition which we either cannot or do not want to question; in other words, that particular aspects of a culture can be critically examined only within the context of that culture. (Law, Legislation, and Liberty, vol II, p 25)
The case for same-sex marriage rests on two traditions that no one in the debate seriously wants to question. These two traditions are each pervasive in our society and generally thought of as good. Yet they now stand in conflict with one another. These traditions are, first, marriage itself, and second, the ideal that government should wherever possible treat people equally with regard to gender.
The first ideal, marriage, is self-evidently traditional, however much its forms may have changed along the way. The second ideal, gender equality before the law, evolved more or less naturally from early liberal ideals about legal personhood and equality. If all men should be equal before the law, what about women? It was a perfectly fair question to ask, and again, it was itself the work of an immanent critique, which merely examined an already accepted normative claim and offered an extension to it that could not be refuted.
Advocates of same-sex marriage propose only that we reconcile the conflict between marriage and gender equality, just as Hayek argues that societies ought to do. In this case, it means ending the gender discrimination that says that women are forbidden from marrying women, even while men can do so, and vice versa.[1] It means finding the one way that we can have both of our cherished traditions.
Using the norm of gender equality before the law to critique the institution of marriage is the very picture of an immanent critique. As a result, it’s not terribly invasive. For all existing marriages, nothing would change. For nearly all relationships that have not yet become marriages, again, nothing would change. For a few relationships that have not yet become marriages, yes, there would be a change. And the ideals of marriage and gender equality before the law would be reconciled, where previously they were in conflict.
If only we had the time. If only. But Perry seems fated to short-circuit all that, alas.
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[1] This is also why polygamy is not nearly a proper extension from same-sex marriage. Where gender equality before the law is a deeply entrenched ideal in all western societies, polygamy is not.
I agree with you that Perry is probably imprudent, but I don’t share your pessimism on the strength of the potential backlash. Constitutional ammendments need an awful lot of umph behind them and unless there’s a remarkable sweep that tips both the house and the senate to republicans there’s going to be a very big stretch of time going on there for the easily distracted electorate to move on. Ammendments are very hard to do, even just in the DC step.
Watching the witnesses in Perry was educational at least. The only witness the anti SSM folks could muster promptly flipped on the stand and all they could do was wave their hands and offer only the most vague of doom mongering. Irrelevant to the case in question maybe but illuminating otherwise.Report
A Federal Marriage Amendment is a non-starter. Dead before it leaves the stables, never mind reaching the gates. It’s premise is unconstitutional, no matter how it is written, the Federal government does not have the power to dictate marriage. Several states have passed marriage amendments to their own constitutions and many were struck down as being unconstitutional. I see the same happening here.
Mind you, there is little to no chance of an Amendment getting out of the Senate, nor the House. Then getting 2/3 or 3/4 of the states to agree?
Not. Going. To. Happen.Report
@CRM,
An amendment to the constitution doesn’t have to be constitutional. If it were done by the proper forms, an amendment reading “The First Amendment is hereby repealed” would itself be permitted.
Now, it may be prohibitively difficult politically to pass a Federal Marriage Amendment, and I’m open to that argument. But I don’t think it will be difficult at all. I think such an amendment would easily pass if same-sex marriage were imposed nationwide any time in the near future.Report
Like CRM, I disagree. Reconciling marriage and gender equality should be no different than reconciling marriage and racial equality. If the Supreme Court orders it, as they did in Loving v. Virginia, there will be, without doubt, protests and demands for a Constitutional amendment to override the courts decision.
But there isn’t a large enough majority in favor of officially discriminating against homosexuals to get a constitutional amendment ratified. Even many people against gay marriage will refuse to support an amendment outlawing it, knowing how the 3/5ths compromise, Prohibition, and Dred Scott are viewed today.
The worst case scenario is that, against all likelihood, an amendment does pass. The immanent critique will still continue, and the amendment will eventually be repealed, like Prohibition.
Far more likely is that Perry v. Schwarzenegger is part of the immanent critique, much as Loving v. Virginia was.
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@Jason Kuznicki, But there is the question of consistency. If the FMA were to pass (I don’t think it would, but that is another matter), the Supreme Court could rule that its inconsistent with some other part of the constitution (presumably the Due Process clause). Its not clear what would then happen since this hasn’t happened before in the US, but it does happen in Britain because the sovereignty of parliament prevents the Law Lords from actually striking down laws. Instead the rule them to be inconsistent with something else (usually the European Declaration on Human Rights) and suspend their application until parliament fixes the problem.Report
@Simon K,
Not so. The Court is bound to presume consistency among the various parts, even if they seem inconsistent. Thus the Ninth Amendment did not touch the Eighteenth Amendment, though one might certainly wish it had. The Court always presumes that anything more specific always trumps anything less specific; this is one of the canons of constitutional interpretation and is not seriously open for discussion.Report
@Jason Kuznicki, I’m wondering: don’t the terms of a hypothetical FMA make a pretty huge difference here?
Like an FMA that takes something akin to the position of “marriage is defined only as between a man and a woman” would obviously be a gigantic step backwards, and quite possibly even a permanent step backwards.
But I have a really hard time seeing an amendment with that kind of language going anywhere – it’s offensive to the state legislatures that would have to approve it because it codifies the federalization of marriage, thereby largely removing the regulation of marriage from the states; it’s also going to be unpalatable to the sizable chunk of people who favor some form of broad civil union that is marriage in all but name, etc., etc. At a minimum, such an amendment would require years to get enough legislative support in enough states to pass, during which time SSM will be legal and will provide ample opportunity to demonstrate the problems with and lack of basis for that kind of an amendment.
On the other hand, if the FMA instead takes the form of something that removes the definition of marriage from the scope of the 14th Amendment -essentially taking the states’ rights approach – it probably passes quite quickly. But that kind of an Amendment would essentially just be a return to the status quo rather than a giant step backwards, especially since it couldn’t have any impact on how states interpret their own equal protection and due process clauses.Report
@Jason Kuznicki,
A Constitutional Amendment requires a 2/3 vote of Congress and a majority vote in both houses of 3/4 ths of all state legislatures. 38 in all. I don’t think the FMA would even pass Congress, but if it did I think you would have big trouble passing it in at least 13 states including California, Hawaii, New York, Maine , Massachusetts, Rhode Island, Vermont, Connecticut, New Hampshire, Oregon, Washington, Colorado, and New Mexico.Report
@CRM, Dems are weasely on SSM but I think they could be relied on at the very minimum to kill an anti SSM ammendment in the senate. If, however, the ammendment managed to get through DC I suspect the supporters could possibly assemble the necessary state sign-ons.Report
@CRM,
Er, while I agree and I am greatly pleased that they will never get it passed it would be constitutional by definition if it was accepted a constitutional amendment.
Heck if we slavery could come back with some strategic amendments/repeals. It won’t and that is a great thing but it could.Report
@CRM, by definition, an amendment amends the constitution. It can be repealed, but it can’t be ruled unconstitutional.
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CRM,
State constituitonal amendments can be struck down on federal grounds, but if a federal amendment is passed, no matter how obnoxious or unconstituitonal the premise, it becomes part of the law.
Jason,
Opponents of same-sex marriage had more wind at their backs for a Federal Marriage Amendment after the Goodridge decision in MA was handed down than they do today.
Also, given the reasoning in Romer v Evans and Lawrence v Texas (two opinions he drafted), I don’t see Anthony Kennedy siding with the conservative bloc on this one.
North,
Why do you think it’s imprudent? I think the reasoning for striking down Prop 8 is constitutionally sound.Report
@Dave, Dave, when I say imprudent I am thinking almost entirely in terms of strategy and tactics rather than principle. My limited understanding of the law and my personal principles agree completely with you that there’s a case to be made against prop 8 on both legal and principal grounds.
That and a buck fifty will buy me a cup of joe. We’re dealing, alas, with low information voters here. They’ve come a long way on SSM but I feel that politically speaking the time has come to move away from courthouses and into legislatures. I think the best and most lasting gains will be made with legislative pushes and that the dangers of continuing down the court route are not insignificant. Those dangers are: court rulings that write into law serious roadblocks to SSM or court rulings that so exceed where the populace is willing to go that they provoke backlash in the forms of amendments or a reversal of the currently very positive trends of public opinion re: SSM.
I think, at this point, that the risk/rewards of continued court fights suggest easing up on that venue and moving harder on the legislature. I wish we could have it quick and easy but I fear we’ll end up with worse than nothing. I got married in Canada last year to my partner of ten years. The road is so very very long. But I’m worried that through imprudence we’ll make it longer.Report
Why in the hell do they always do this kinda stuff within a few months of an election in an even-numbered year?
What the hell, guys?Report
@Jaybird, Well one of the two lawyers pushing it is a Republican… … …
But seriously, lawsuits take so long to unwind and have so many time variables to their length that I don’t think it’s possible to time them to dodge political inflection points.Report
@North, once is happenstance.
Twice is coincidence.
Three times is enemy action.Report
@Jaybird,
If bmaz is right, and if the ruling is in favor of the plaintiffs, it will have been a correctly decided case. Judge Walker’s hands are clean, or at least they’re tied. I’ve been watching closely, and the defense really botched their argument. Meeting the rational basis test shouldn’t have been hard, but they totally blew it.Report
@Jason Kuznicki, Seriously, their witness lineup was a joke. The only man they got on the stand flipped under cross examination for heavens sake!Report
@Jason Kuznicki, here is my dilemma.
I am totally in favor of nobody caring if two dudes want to get married. I figure it’s none of my beeswax. I figure it’s none of their beeswax. Indeed, when it comes to “them”, there are not enough bees to create the wax necessary for there to be enough beeswax for the amount that those people think is theirs.
I digress.
However, the government has meddled here, there, everywhere and there are a lot of things that I would have thought would have gotten people into the streets that, instead, got a “blah”.
One would think that gay marriage would merit such a blah. It doesn’t. As a matter of fact, it totally gets a ton of people in the streets. (Ironically, it’s like immigration or taxes.)
I worry that we will have our first Constitutional Convention since the 21st Amendment because of this.
I can’t think of 13 states that absolutely positively would not sign if it came to that… because I can’t think of 13 states that didn’t ban it when it came to that.Report
@Jaybird, Seeing as the Iowa legislature has successfully blocked the advancement of an anti-SSM amendment for two years now, I think a prospective FMA has less fertile ground in the states than people seem to think. If all the state legislatures that are more liberal than Iowa’s stand firm, the FMA might have difficulty getting half the states, let alone three quarters.Report
@Jacob W, for what it’s worth, I hope you’re right.
I fear you are wrong.Report
Overturned!
ecf.cand.uscourts.gov/cand/09cv2292/Report