Submitted to a Candid World

The statue to the left - outside of the New York Supreme Court building at Madison Square Park - bears the caption mentioned in this title.

This statement - an iteration of the fundamental guarantee of the due process clause of the Constitution - embodies democracy’s greatest defense against tyranny: that every law ought to be tied to reality through wisdom.

The question, of course, is what is wisdom? In what manner of wisdom
must the law find its basis, for it to not be a menace to democracy? It goes without saying that one man’s wisdom is another’s folk tale, and accordingly, I think the law oversteps its bounds and enters perilous territory when it reaches beyond the most fundamental baselines of society. The law that rests on subjective morality rests on dubious ground indeed, and is liable to collapse upon itself, like Vortigern’s Tower, with no Merlin to prop it up.

Twice our Constitution, in its amendments, guarantees “due process of law” - once in the Fifth Amendment [1], and once in the Fourteenth [2] - and our judiciary has held that due process is not merely a formality. The legislature does not discharge its duty due process merely by voting. Rather, wisdom is the process that is due: a statute which acts against an individual, and lacks a “rational basis” in fact for doing so, is unconstitutional [3]. Every law passed by Congress must meet at least this burden [4], to ensure that the government deals fairly with its people. Irrational law is the hallmark of the tyrant.

The revolution of the past decade has been to recognize that morality is not necessarily wisdom enough to justify a law. In Lawrence v. Texas, in striking down a Texas statute that forbade gay sex, Justice Kennedy said,

The condemnation [of gay sex acts] has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. “Our obligation is to define the liberty of all, not to mandate our own moral code.” Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 850 (1992).[5]

Kennedy answered “the issue” - “whether the majority may use the power of the State to enforce these views on the whole society” - in the negative. And I think rightly so. A majority acting unrestrained with its own concerns in mind, whether economic or moral, acts against the basic supposition of democracy, that the citizen ought to have the right to do that which infringes not upon the rights of others. A tear in the moral fabric of society, or a vague disquiet at what one knows his fellow-citizens are doing, is not a cognizable harm to a free society.

Kennedy’s line, of course, can be and has been interpreted as less than crucial to the decision.  It can be read as mere dicta that can be tossed aside in future cases (in fact Scalia refers to this, among other aspects of Kennedy’s opinion and its foundation in O’Connor’s Casey opinion, as “the passage that ate the rule of law.”). And ignoring this line of Lawrence in fact makes sense. For to take the stance that morality alone is not “rational basis” begs the question, “what is morality, and what is fact?”, potentially rendering most laws open to question and open to interpretation.

Lawrence challenges us to question our society’s basic definition of morality, and to ask what is and what is not mere morality, and it further challenges us to look closely at what we can or cannot allow, without letting the objective basis of our own morality founder.  In short, challenges us to ask what element of morality is wisdom, and what is mere prejudice.

I think that this is a challenge which we should accept. To question the basis of the mos maiorum (morality of the majority) is not to ignore morality, and it need not result in the end of a stable society. Rather, it is to ask morality to justify itself against objective wisdom, and to recognize that some moral concepts may impose burdens without cause. And ferreting out those little injustices is what the law and democracy are all about.

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[1] The Fifth Amendment guarantees:

No person shall be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

[2] And the Fourteenth states that:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws

[3] U.S. v. Carolene Prods. Co., 304 U.S. 114 (1938):

We may assume for present purposes that no pronouncement of a Legislature can forestall attack upon the constitutionality of the prohibition which it enacts by applying opprobrious epithets to the prohibited act, and that a statute would deny due process which precluded the disproof in judicial proceedings of all facts which would show or tend to show that a statute depriving the suitor of life, liberty, or property had a rational basis.

[4] Laws which discriminate on the basis of gender, race, or religion must meet a higher burden. See id. at footnote 4.

[5] Lawrence v. Texas, 539 U.S. 558 (2003), available online here.