Really Professor George, et al.?

I have to make a confession: I like Robert P. George as a person and respect him as a scholar. I live close enough to Princeton and work even closer that I can attend the public lectures there. While I can’t say I know Dr. George personally, I have briefly, informally chatted with him on more than one occasion and he was nothing but cordial. (He clarified the Church’s understanding of oral sex when I asked; I mistakenly believed, like a lot of folks, that such wouldn’t be kosher because the parts were not “designed” for one another as one version of the argument goes. But he noted oral sex is consistent with the natural law provided it’s used as a means to the end of sperm trying to fertilize egg. In other words, “foreplay.” If used as an “end” in itself, it would be unnatural and thus wrong.)

And while I don’t see eye to eye with him on matters of human sexuality, his James Madison Program does wonderful work exploring the history, philosophy, theology, law and politics of the American Founding.

That said, I was disappointed to see that he and his affiliated group the American Principles Project have issued a statement calling for “resistance” to the Obergefell v. Hodges case.

George is fond of raising Dred Scott as a reductio against the principle that SCOTUS must be given the last word on what the Constitution means. As in “if you were President would you obey Dred Scott?”

In fact, when Robert George discussed issues of constitutional interpretation with Justice Stephen Breyer, he tried to pin Justice Breyer down with this question. (My Dad & I attended the event, sitting right behind us in the audience was the late great Nicholas Katzenbach.)

But this is what’s key to that dilemma (and forget about any offensiveness of the comparison): Dred Scott was worth going to WAR over in a literal sense.

Likewise with Jim Crow and Brown v. Bd. of Edu. It’s good that the President & SCOTUS were on the same page then, while the heads of the Southern States were not. But the prospect of a second civil war certainly was raised by the southern state resistance to Brown.

Further, George doesn’t get his invocation of Abraham Lincoln right. Though Lincoln obviously disagreed with Dred Scott, he didn’t support “resisting” the case on power grounds. As he said:

“We know the court that made it, has often over-ruled its own decisions, and we shall do what we can to have it to over-rule this. We offer no resistance to it.”

The bold face is mine.

Finally, if we are going to stick with the race/civil rights analogy (I know those supporting gay rights are often accused of unfairly invoking this as an analogy, but when you cite the Dred Scott case to argue against gay equality, you are the one who has played that card and opened the door), the position of George et al., puts them on the losing side of Cooper v. Aaron.

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Jon Rowe is a full Professor of Business at Mercer County Community College, where he teaches business, law, and legal issues relating to politics. Of course, his views do not necessarily represent those of his employer. ...more →

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64 thoughts on “Really Professor George, et al.?

  1. Kevin Drum had a post up this week about how the Constitution gives social conservatives (and probably sometimes liberals), the everspring of hope of total victory.

    “And there’s a lot of truth to this to this view. The entire Western world has been moving inexorably in a liberal direction for a couple of centuries. It’s a tide that can’t be turned back with half measures. Conservative parties in the rest of the world have mostly made their peace with this, and settle for simply slowing things down. American conservatives actually want to reverse the tide.

    That’s all but impossible in the long term. It’s just not the way the arc of history is moving right now. But American conservatives are bound and determined to do it anyway.

    This is the fundamental problem. British conservatives, in theory, could turn back the clock if they wanted to, but they don’t. Their parliamentary system allows them to do it, but public opinion doesn’t—which means that if they want to retain power, there’s a limit to how far they can fight the tide. If American conservatives were in the same situation, they’d probably end up in the same place. Once they actually got the power to change things, they’d very quickly moderate their agenda.”

    I agree with the basic argument. Constitutional law changes over time. Brown v. Board of Ed overturned Dred Scott. The 13th-15th Amendments nullified Dred Scot. Lawrence v. Texas nullified Bowers v. Hardwick.

    So it goes. The hope seems to be that if you get a Republican President and Senate, and you get lucky, you can fill the court with people like Thomas and then bring test cases that will succeed. It might take a while but our conservatives never seem to abandon their hopes of total reversal. There are still people out there talking about legislation and Supreme Court decisions from 50-80 years ago as wrong. This includes the entire New Deal, the entire Great Society, Miranda, Griswold, etc.

    So I do think a chunk of them might think this stuff is worth a war or dragging down the United States.


    • I agree there is some truth to this theory, but not nearly as much as conservatives think.

      The biggest foundational strategic error I see conservatives making over the past decade or so is that all of their long-term plans rely on their fantasy of silent majority suddenly coming to life. Critics and fans alike romanticize SCOTUS and assign to it a power and influence that it does not really have.

      Take Dread Scott. We have tendency to look back from a position of 2015 and assign our own points of view to those who disagreed with the decision in 18657; after all, they disagreed and we disagreed, so we all have the same opinions, right? But that’s a mistake. There’s a reason why the country didn’t stand up in arms against SCOTUS after Dread Scott, and it’s the same reason the country didn’t rise in mass after Obergefell: No matter what we tell ourselves, the Supreme Court acts as a reflection of the country itself. If the North was truly horrified by the way blacks were treated in the South, everything that happened to blacks after Lee surrendered would have gone very, very differently. (And better.) Likewise, SCOTUS decisions that focused on African Americans from 1870 to the Marshall era happened because that’s what the county wanted to have happen at the time. And it changed over time for the exact same reason.

      Conservatives can resist Obergefell all they want. (And it appears they want to very, very much.) It won’t make a difference, because the fundamental thing that occurred to make way for Obergefell wasn’t John Roberts, it was the seismic change in the way the majority of the country views gays and lesbians.

      We are more of a democracy than we like to think.


        • Barry Cushman’s Rethinking the New Deal Court is the best explanation, and it kind of kicks both the liberal and conservative viewpoints in the teeth. Maybe that’s why I like it so much.

          The easiest way for me to tell if someone has remotely a clue is to listen to them talk about Lochner v New York. If they hate it, they’re lost. If they love it, they’re lost as well.


      • I don’t think this was exactly right. There have been massive negative reactions towards Supreme Court cases. Both Dread Scott and Brown vs. the Board of Education were not meekly accepted by those that disagreed with them. Abolitionists and many White Northerners who were growing increasingly uncomfortable with slavery did what they could in minor or major ways to undermine Dread Scott and continue the fight against slavery like send rifles to Kansas during the battle for that state. Likewise, the desegregation of schools was fought against with tooth, claw, and nail even though the South didn’t arise in a Second Civil War over Civil Rights.


    • There are still people out there talking about legislation and Supreme Court decisions from 50-80 years ago as wrong.

      To be fair, the post-New-Deal interpretations of the Interstate Commerce and Tax and Spending clauses are wrong. The historical record on this is pretty unambiguous, and the idea that the Supreme Court discovered the True Meaning Hidden in the Constitution after 130 years is obviously bullshit. As you say, you got what you wanted, and it’s not going to change. The decent thing to do is just shut up and take the win. It’s just bad form to keep insisting that it was legitimate.


        • Are you asking this question from the premise that by definition all Supreme Court decisions are legitimate, or from the premise that “The federal government can do pretty much whatever it wants, subject to the constraints of the Bill of Rights” is actually a totally reasonable interpretation of the Constitution?


          • I”m trying to decide if you’re calling it “illegitimate” stems from an argument you would be consistent with across all other instances of interpretations of the Constitution changing over time, or if you’re merely using “illegitimate” as a euphemism for “something I don’t like.”

            If it’s the latter, then hey, have at it. If it’s the former, I’m curious to know how you feel about other shifts in interpretation over the years. To take just one example, your line about the folly of modern people suddenly finding the true meaning of what the Constitution means after 130 years could easily be used by someone arguing that Obama should be able to jail journalists who are critical of him, especially these days when we are involved with a war on terror.

            So I’m curious, would you say that a court ruling that stated Obama jailing journalists who are critical of him is unconstitutional was illegitimate as well?


            • I’m pretty consistent in this. As I’ve said before, I thought Kelo was probably correctly decided, and I didn’t like that outcome, and I thought Roe v Wade was definitely incorrectly decided, and I liked that outcome. I don’t know much about the details of Lochner, but my sense is that it was probably incorrect, since the US Constitution gives state and local governments fairly broad leeway in governing intrastate issues. Even though I don’t like the ways in which they choose to govern.

              I think protecting the process is more important than any specific decision. If the Constitution can change according to popular sentiment and the personal preferences of the judges, then we don’t have any real Constitutional constraints on government power. The Constitution specifies an amendment process, and going through that is the only constitutionally legitimate way to change it. Yes, it’s hard, but that’s the whole point—that changing the Constitution should require a broad consensus rather than a narrow majority.


              • The constitution, however, was drawn up in a state of mind where the Congress would be the driving force, and the President the “veto power.” That’s hardly the case these days….

                Do you think we should feel free to impose limitations on Presidential power, because the Constitutional Convention didn’t think of them? Or is the better plan to let the President run roughshod over Congress, because the Constitutional Convention didn’t think of that as even a possibility…?


            • If one starts from a place where the constitution lays out specific powers the government has, and a list of things the government is to hold inviolate, then the expansive reading of the commerce clause is problematic, since it grants the federal government carte blanche regulatory power (which is not always a good thing re: The Drug War).

              It may have been a necessary thing given our modern economy, but that change probably should have happened via the amendment process.

              In the case of Loving or Obergefell, the court is protecting or expanding individual rights, not government power, which is one of it’s key duties.


              • I’m a hack historian — at best — but my recollection is that the federal government had to begin stretching its enumerated powers pretty much from day one. The Postal Clause was an early source of conflict; the Constitution says that the federal government can establish post offices and postal roads. There were considerable arguments over whether “establish” in the case of roads meant actually building them, or simply designating them. There was considerable argument over whether establishing post offices included any sort of delivery service. And whether transport by ship was covered.

                In hindsight, the federal government was too weak to deal with the issues of that day, far too weak to deal with the issues in a country with increasing mobility, and the amendment hurdle was too high. I firmly believe that the Constitution will never be amended again short of a convention that lays out the terms for a partition of the country.


                • The thing is, the cases you describe are perfectly reasonable disagreements over underspecified clauses in the Constitution. Even the expansive interpretations are in keeping with the overarching theme of the Article I Section 8, which is that Congress shall have the power to legislate issues dealing with relations among the states and with foreign countries, and it’s fairly plausible that they’re consistent with original intent. This kind of thing is exactly where the courts have legitimate discretion, because they have to decide one way or the other, and neither is obviously correct.

                  20th century abuses of the Interstate Commerce clause have none of that going for them. There’s no plausible textual justification, they’re obviously at odds with original intent, and they address purely intrastate issues.

                  Also, one reason we haven’t had many Constitutional amendments recently is that the Supreme Court has been perfectly willing to disregard Constitutional constraints on government power. Note that it was widely accepted that Prohibition required a Constitutional amendment. Nowadays Congress would just pass a law and the courts would rubber stamp it.


                  • Note that it was widely accepted that Prohibition required a Constitutional amendment. Nowadays Congress would just pass a law and the courts would rubber stamp it.

                    Absolutely — after all, they put a mild intoxicant on the Schedule I controlled substances list and put a million people in jail trying (and largely failing) to enforce it.

                    I argue from the other direction, that Congress and the courts legislate things that require either amendments or a very expansive reading of the present Constitution as a safety valve. The bar for amendments is too high. Pick any change that should be done by amendment, and there are at least 13 states that will oppose it.

                    Well, I’ll make an exception to that. The 1976 Federal Land Policy and Management Act, making the declaration that the federal government will hold vast amounts of public land in some states in perpetuity, really should have been an amendment. There were only 12 states that were radically opposed to it — the 12 that were seriously affected by it.


                  • Steamboats did not tend to stay within one state, but would move up & down the rivers, crossing state boundaries. Federal regulation would apply to such steamboats. If a given steamboat was never permitted to leave the waters of Mississippi, then it shouldn’t fall under the federal regs. The reasoning that it could leave Mississippi is pretty weak with regard to why it has to fall under federal regs.

                    Sure it makes things easier, but if it was really such a benefit, then getting an amendment passed that changed the commerce clause should not have been an issue. It’s not (as I understand it) the job of the courts to make life easier for government.


                      • True, but not all the rivers the steamboats ran on were borders.

                        In the end, the states could have one set, the feds another, and if a steamboat operator wanted to take his boat outside of his state, he’d have to make sure he was in compliance with all applicable regs.

                        Is that easy? No. Is it efficient? Hardly. Is it the job of the courts to read the constitution with an eye toward fixing such inefficiencies? I would say not even a little bit. As I said, if it was really such a bad thing, then people will come together to amend the damn thing.


                        • Yeah, I think a few amendments would do the Constitution some good. (and settle some of the conservatives bitching, which even when righteous tends to get on my nerves. Process process process isn’t exactly something I have much sympathy for. I have a few things that I know are wrong, but I’m more utilitarian than most).


                            • nevermoor,
                              A constitutional convention specifically over the Commerce Clause (aka “Rewrite the constitution, and think about it for once”) would be a cakewalk through congress.

                              Easy as sin, once the drafting got done.

                              If NAFTA can get passed, despite far fewer businesses caring about it, then we could pass this.

                              All you’d have to do is get the Supremes to say “This Interpretation is Wrong, but we invite Congress to Amend.”

                              I mean, really… this isn’t the debt ceiling. This is a fundamental bedrock assumption for MOST BUSINESSES.

                              Or, you know, we could just let California set all regulations. (actually not kidding on this, they already set a good deal of environmental regs — including what speculators are pulling out here in coal country for carbon sequestration, despite the laws not being even written yet).


              • Loving and Obergefell both expand the power of the federal government over that of the states, by setting federal requirements on each state’s marriage laws. Since the Constitution restricts the powers of the federal government, not that of state governments (which have always been the level at which marriage is defined), such an expansion of federal power is Constitutionally suspect, every bit as much as (say) Social Security. That fact that we like the first two perhaps more than the third one doesn’t mean that they’re different in kind.


                • Mike Schilling:
                  Loving and Obergefell both expand the power of the federal government over that of the states, by setting federal requirements on each state’s marriage laws.Since the Constitution restricts the powers of the federal government, not that of state governments (which have always been the level at which marriage is defined), such an expansion of federal power is Constitutionally suspect, every bit as much as (say) Social Security.

                  When did “Constitutional requirement” become synonymous with “federal requirement”? Did McDonald expand federal power by incorporating the Second Amendment?


                • The federal government has always had the obligation & the requisite power to protect rights. The 14th granted the federal government the power to protect rights at the state level as well (which is proper, it was an amendment expanding power, not a court decision).

                  Loving & Obergefell did not expand federal power, or find new power, but rather easily & consistently fit into the power to protect rights. The states still have the power to regulate marriage, they’ve merely been told that if they wish to exercise that power, it must be exercised equally to all consenting adult pairings.

                  Also, when it come to the court “finding new meaning”, I think before we can make that claim, we need to look back & see how the court ruled in the past. If, for instance, the court was pretty consistent in refusing to allow the federal government to muck about in intrastate commerce, or allowed it in only very narrow circumstances/carved out very specific exceptions, then it would be right to wonder why the court essentially said “Fish It” and said anything goes. On the other hand, if they’d been carving out wide & expansive exceptions, then it makes sense that at some point, they’ll just accept that it’s effectively dead letter & be done with it (a fate I fear for the 4th Amendment).


                  • Oscar,

                    The way I’m reading Mike’s comment is that the application of the 14th to, as they say, “new developments” had the effect in practice of expanding federal power, even tho as you say that power already existed formally in any event. So, you’re both right!

                    Course, gummint-hating conservatives will view the new application of an already existing power as unconstitutional for yaddayaddablah and so on.


                    • Tomato, perspective, however you want to look at it. End result was a consistent application. If conservatives don’t like it, they shouldn’t pretend to be all concerned with protecting civil rights.


                      • I don’t think they are concerned with protecting civil rights. Further, I don’t think they’ve ever pretended that they are. They’re concerned, primarily, with protecting a normative picture of how things should be, and reject the constitution and the courts when decisions run counter to that picture.

                        George etal’s argument for resisting Obergefell is a classic example of that.


                      • When do conservatives talk about protecting rights other than property rights, gun rights, and the freedom not to associate with Those People? Certainly they have no love for voting rights, freedom of other people’s religion, or the right to freely assemble.


      • Likewise, Loving vs. Virginia. The 14th was never intended to create a right to interracial marriage, and the idea that the Court discovered its True Meaning after 100 years is obviously bullshit. It’s illegitimate, and if the Warren Court hadn’t hijacked the Constitution for its own brand of social engineering, Obama would be too,


        • Loving could have easily been decided without referencing specific rights.

          Both Meyer v Nebraska and PIerce v Society of Sisters were privacy-related cases decided in the 1920s yet neither decision specifically identified rights.

          Were any specific rights identified when the court struck down same sex sodomy laws in Lawrence v Texas? I’d have to re-read the decision. It’s been a while.


              • Not exactly but close. The 14th Amendment could have been invoked without referring to specific rights.

                Loving could have been correctly decided on those grounds, as could Griswold, Lawrence, Obergfell, etc. Heck, a whole separate body of equal protection jurisprudence wasn’t necessary to reach the same results as in cases like Brown.

                The analysis of rights and deeming certain ones fundamental came out of the New Deal era, specific the language in Footnote Four in the U.S. v Carolene Products case.


                • That’s orthogonal to my point, which is that the 14th was, correctly, used to justify the decision in Loving, but roughly none of the people who voted for it intended any such thing. In fact, if in 1868 some prescient soul had said that its passage would lead to black men marrying white women, its supporters would have dismissed that as unsupported and unprincipled fear-mongering. It took 100 years for the Court to find “Interracial marriage is protected” hidden in the Constitution.


                  • Ditto the second amendment and handguns. Eavesdropping laws were passed pre-internet and pre-cell phone and are used in internet-based crimes. Heck, Courts struggled with surveillance technology that could capture sound through phone booth glass.

                    I’m not sure why we get so hung up on whether the people enacting a rule knew and intended a specific application (except where that specific application was actually discussed in the legislative history).


    • There are still people out there talking about legislation and Supreme Court decisions from 50-80 years ago as wrong. This includes the entire New Deal, the entire Great Society, Miranda, Griswold, etc.

      If we tweak the number of years, that could’ve been said in 1954 about Plessy v. Ferguson.

      I disagree that just because something has been around for a while it is therefore correct and right. You didn’t make that argument, and I suspect you don’t agree with it, but I think it’s a logical conclusion from what you said.

      Now, I do agree the fact that such decisions/legislation have been around for a while does lend some legitimacy or presumption of legitimacy. And you could rightly point out that by 1954, Plessy had already been whittled away by other decisions. But then, so has Roe v. Wade.


  2. While I agree that Cooper v. Aaron is a practical necessity, its underlying logic is a bit questionable:

    “Does everyone have to treat your decisions as the supreme law of the land?”


    “Who says so?”

    “We do.”

    “And why do you get to decide this?”

    “Because our decisions are the supreme law of the land.”


    • I get a big smile on my face when people question Cooper v Aaron. It was the right call and it’s quite logical if one looks at it from the perspective of sovereignty.

      Others questioned the logic and we ended up with nullification, secession and a theory of the Constitution that Professor George seems to be invoking more than the original Constitution.


  3. As I mentioned on Facebook, when the letter openly encourages states to ignore the ruling, he goes well beyond James Madison’s interpretation of the Constitution per the Virginia Resolutions and the Report of 1800 and goes well into the theories of John C. Calhoun.

    The belief that a state has the constitutional authority to ignore federal law, whether a statute or a court ruling, implies that the states (well the sovereign people in each) are the only sovereigns in the compact and have the right to judge for themselves the extent of federal power. Given that the Constitution created a system of dual sovereignty and the history is pretty damn clear that one of the intentions of the judicial branch was to resolve disputes between the state and federal government, Professor George’s letter is a losing argument, even on originalist grounds.


    • The purpose of the judicial branch (other than as something that neither the executive nor the legislature could have) was pretty well up in the air until Marbury v Madison and related cases. Since then, of course, the issue has been rather thoroughly settled.


      • How up in the air and according to who? I read Randy Barnett’s Restoring the Lost Constitution years ago, and his chapter on the original meaning of the judicial power provides a lot of evidence that both the Framers and ratifiers understood that the judiciary would have the authority to nullify both state and federal laws.

        Also, if I recall, there were cases prior to Marbury that exercised said power.

        I think we both arrive at the same place though – the matter is long settled.


  4. Any decision that brings about such evils would be questionable. One lacking anything remotely resembling a warrant in the text, logic, structure, or original understanding of the Constitution must be judged anti-constitutional and illegitimate. Obergefell should be declared to be such, and treated as such, by the other branches of government and by citizens of the United States.

    I dunno. Who’s to say, really, since 5 SC Justices as well as me agree with the reasoning employed by Kennedy in the majority opinion. It’s also interesting to note that pretty much the entire list of grievances which George groups under the rubric “such evils” simply beg the question in the conservative’s – that is, tradmar’s – favor.

    So, in the absence of an affirmative argument establishing that the federal gummint is constitutionally prevented from enforcing equal protection and due process rights as they apply to marriage at the state level, this all sounds like a bunch of butt-hurt and voot-shtomping. Hell, even the dissenting Justices sounded butt-hurt and whiny cuz they didn’t get their way. Which is pretty much what conservatism has been become, seems to me.


    • ANd thinking about this some more, if George’s opposition to Obergefell was that it was improperly decided on constitutional grounds, he’d hammer on that point by making the obvious, crystal clear argument demonstrating as much. But he doesn’t. Instead, he rails against the evils which will result from making SSM marriage the law of the land. So his argument – if you actually read it! – isn’t that the court got the decision wrong on constitutional grounds, it’s that they got it wrong on practical and pragmatic grounds. Which is sorta the opposite of what he apparently thinks he’s arguing.


  5. If one starts from a place where the constitution lays out specific powers the government has, and a list of things the government is to hold inviolate, then the expansive reading of the commerce clause is problematic, since it grants the federal government carte blanche regulatory power (which is not always a good thing re: The Drug War).

    To explain why some in the founding generation saw an expansive reading as a problem, I’ll post a quote I used on this subject when I wrote my two-part post on this very subject back in March:

    This original “original intent” was determined not by historical inquiry into the expectations of the individuals involved in the framing and ratifying the Constitution, but by a consideration of what rights and powers sovereign polities could delegate to a common agent without destroying their own essential autonomy. Thus, the original intentionalism was a form of structural interpretation.

    The Constitution did much more than lay out specific powers. It created a system of dual sovereignty where none previously existed: a sovereign federal government supreme with respect to the powers granted under the Constitution with the sovereign (not 100%) states supreme in all else. Unlike the arrangement under the Articles, the states were going to have to transfer ultimate authority (sovereignty) to a newly formed government.

    The concern about an expansive reading, one raised in the various state ratification debates, was the threat it posed to state sovereignty. It’s why what became the Tenth Amendment was added. It’s why the Federalists had to assure opponents of the Constitution that the newly-formed government would only have those limited powers granted to it.

    Very broadly speaking, this is why I think both the left and the right are wrong when they try to put the Constitution “on their team”. The left can talk about the vague text until they’re blue in the face, but they run into a brick wall with state sovereignty. The right can talk about the intention of limiting government and state sovereignty, but they fail to recognize that state sovereignty was an underlying value. Combine the abandonment of that value with a vague text, changing economic conditions over decades and a number of other developments and it would be naive to believe that expansive readings wouldn’t happen (although don’t take this as me endorsing the New Deal era jurisprudence).

    An interesting thought on the Bill of Rights – after doing the research I’ve done, I’m pretty convinced that the Constitution was rooted far more in a commitment to states rights (i.e. state sovereignty and not the 19th Century version) than to individual rights. Reading through the Federalist Papers, I see little if anything about the federal government safeguarding liberties and quite a lot about the state governments having a role in safeguarding the liberty of the people against an encroaching federal government. Obviously, the 14th Amendment changed that significantly, but it doesn’t change what was in the past.


    • The original constitution definitely was not about protecting “the people.” You have that exactly right. Heck, very few of the people were even allowed to vote.

      It was much more like a better-considered version of the EU agreements, but so successful that over time the resulting government was entrusted with significant additional powers (e.g. the 14th Amendment)


      • I think that’s a very good way of putting it. Once the 14th Amendment was ratified, the focus could shift to individuals since people could and did challenge state laws on 14th Amendment grounds (although it took forever and a day for the Supreme Court to get comfortable with this).


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