McCarthy and Franck on same-sex marriage

Matthew J. Franck, professor and chair of political science at Radford University, has published an interesting article at a blog called Public Discourse. Prior to this, I wasn't familiar with either the blog or the Witherspoon Institute, which hosts it (sorry about that!) but Andy McCarthy of NRO's The Corner linked to it today. McCarthy has a similar article in National Review available here.

Public Discourse is subtitled "Ethics, Law, and the Common Good." On my blog, I've tried to say a little something about all three topics, so I have a feeling I'll be reading and responding to more from Public Discourse in the future.

Both McCarthy and Professor Franck worry about "judicial tyranny", of which the recent Iowa same-sex marriage decision is taken to be a good example. McCarthy cites Federalist 10, Madison's discussion of faction -- something I've referred to many times throughout my blog. After recounting Madison's worries about factionalism, McCarthy adds, "A society’s capacity to manage faction determines whether it lives or dies."

I wholeheartedly agree with that!

To McCarthy, when the Iowa Supreme Court "imposed" same-sex marriage on the state, it not only stepped outside its constitutional bounds, but -- more problematic -- it "short circuited" the usual process through which a society manages its various factions ("short circuit" is my term, not his, but I think it captures his worries.) An illustrative quotation:

Leftists would supplant politics, the untidy, bumptious business by which the people control their own destiny, with “the rule of law.” With that clever euphemism, they bank on our reverence for the ideal of ordered liberty, hoping we’ll never catch on to the fact that we’re to be ruled not by law but by lawyers — predominantly, progressives trained to regard the law not as a predetermined code to ensure social order but as an evolving tool to promote social change.

When judges act to resolve controversies and disagreements (as they did in Roe and its follow up cases) they basically tell factions to "stand down." As I understand McCarthy, he believes judges have neither the legal nor the moral authority to do this. Legally, faction is managed through federalism. Morally, it is the responsibility of the community itself to resolve factional disputes.

I'm going to (mostly) set the legal issues aside, as the law is not my area of expertise. However, I do think McCarthy overstates his case: judges strike down laws when they conflict with more authoritative laws, e.g. with the constitution. A statute can conflict with the constitution in at least one of two ways. First, it can conflict directly: the constitution says "no laws forbidding X" and the legislature makes a law that forbids X.

More interestingly is the case of indirect conflict. Suppose the constitution prohibits the legislature from making laws that prohibit X-like actions, where "X-like" stands in for some property various and diverse acts. Actions that are X-like shall not be prohibited. There can very easily be a dispute about whether a given action is X-like enough to fall under the principle. But I don't think a court necessarily does wrong if it decides a certain action, Y, is X-like enough to fall under the principle. Such a decision is not wholly a matter of subjective opinion.

For example, if the legislature okays waterboarding as a means of punishment, a court will have to decide if waterboarding falls under the category of punishments the 8th Amendment prohibits. Is waterboarding murderers cruel? I think this question can be answered in an objective way. And I think courts should have a role in deciding if waterboarding is X-like enough to fall afoul of the 8th Amendment.

To turn to moral issues, I don't think McCarthy has successfully made the case that it's especially important that the community itself resolve its factional issues. For one thing, I'm not even sure this is possible, except in trivial cases. For recall that the community just is a collection of factions -- at least, that's what I take away from Madison. There is nothing like a social mind, standing above and apart from the factions, to which the responsibility for managing faction can be assigned.

Factions have to resolve their conflicts on their own. But what would motivate them to do this? Faction X wants one thing and faction Y wants another. The two things cannot both obtain at the same time. If the factions go to war in the public square, one faction will lose. Each faction knows this, so each faction tries to find enough common ground with other factions to win the battle.

Voila, political parties! But political parties don't resolve factional conflict: they simply postpone it, in the best of cases. In the worst of cases, political parties lock factions into a cycle of political warfare that drains the resources of not only the involved factions but lots of innocent bystanders who would simply like to get on with their lives. Politicians realize the gains to be made from patronizing well-organized factions. Factions lobby for more control of the government. It's a zero sum game that should satisfy no one.

When politicians and factions get in bed together, the rest of us lose. Why should rent-seeking be any more admirable here than it is in economic matters?

In places, McCarthy sounds almost like a left-wing deliberative democratic, who believes that factional conflict can have a transformative effect on factions, moderating their views and making it easier for them to find common ground. Whatever the other merits of this argument, it seems too optimistic for a conservative to endorse. And I doubt Madison would've endorsed it.

Factions have almost no reason to moderate their views, except insofar as this is necessary to gain the support of nearby factions. But the rational rule is to moderate as little as possible, because too much moderation threatens to dissolve the faction itself. Factions want to get their way more than they want to pursue common ground with other factions.

Courts resolve faction in an entirely different way. For whatever reason, the highest courts in the land have a special kind of salience. This allows them to have the transformative effect on factions that factions cannot produce for themselves. Brown v. Board of Education had that kind of transformative impact on American discourse. By authoritatively settling certain highly divisive factional disputes, courts can put a stop to factional warfare and allow factions to devote their energies to goals that don't involve imposing their will on others.

As a libertarian, I'm happy with that outcome.

I'll have to get to Prof. Franck's article later!