Perry, Hayek, and Immanent Critique


Jason Kuznicki

Jason Kuznicki is a research fellow at the Cato Institute and contributor of Cato Unbound. He's on twitter as JasonKuznicki. His interests include political theory and history.

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23 Responses

  1. Avatar North says:

    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

  2. Avatar CRM says:

    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

    • Avatar Jason Kuznicki says:


      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 If it were done by the proper forms, an amendment reading “The First Amendment is hereby repealed” would itself be permitted.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

      • Avatar JGabriel says:

        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.


      • Avatar Simon K says:

        @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

        • Avatar Jason Kuznicki says:

          @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

      • Avatar Mark F. says:

        @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

    • Avatar North says:

      @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

    • Avatar ThatPirateGuy says:

      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

    • Avatar JGabriel says:

      @CRM, by definition, an amendment amends the constitution. It can be repealed, but it can’t be ruled unconstitutional.


  3. Avatar Dave says:


    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.


    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.


    Why do you think it’s imprudent? I think the reasoning for striking down Prop 8 is constitutionally sound.Report

    • Avatar North says:

      @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

  4. Avatar Jaybird says:

    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

    • Avatar North says:

      @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

      • Avatar Jaybird says:

        @North, once is happenstance.

        Twice is coincidence.

        Three times is enemy action.Report

        • Avatar Jason Kuznicki says:


          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

          • Avatar North says:

            @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

          • Avatar Jaybird says:

            @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

            • Avatar Jacob W says:

              @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

            • Avatar Jaybird says:

              @Jacob W, for what it’s worth, I hope you’re right.

              I fear you are wrong.Report

  5. Avatar Jaybird says: