Earlier today, I was reading our friend John Yoo on the question of whether the Constitution forbids discrimination on the basis of sex. It doesn’t. You can comb the document as carefully as you like, and there isn’t anything in there about that. Feminists have long implicitly acknowledged that, hence their pursuit of a constitutional amendment prohibiting it. (Most versions of the so-called equal-rights amendment would do a good deal more than prohibit discrimination.) But the Constitution’s silence on the question has not prevented the Supreme Court from determining, ex nihilo, that the Constitution does somewhere contain a prohibition against sexual discrimination, albeit one written in invisible ink known only to the eyes of the initiated.
As usual, Yoo is a model of clarity:
The point of originalism . . . is not whether the right in question is good or bad, but which institution of government should make the decision. If you believe, as I do, that discrimination based on sexual orientation is not prohibited by the Constitution, that does not end the matter. The Constitution simply moves the issue to the political branches of the federal government and the states. The president and Congress can ban such discrimination by the federal government — as it recently did with the repeal of “don’t ask, don’t tell” — and the states can make up their own minds.
Yoo quotes Antonin Scalia on the same question:
If indeed the current society has come to different views, that’s fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey, we have things called legislatures, and they enact things called laws. You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don’t like the death penalty anymore? That’s fine. You want a right to abortion? There’s nothing in the Constitution about that. But that doesn’t mean you cannot prohibit it. Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.
With Brett Kavanaugh confirmed to the Supreme Court, many conservatives would say that the Court now has a 5-4 majority of originalist justices (Chief Justice Roberts may rightly be regarded with some suspicion on that); many of our progressive friends instead would insist that what the Court has is a 5-4 majority of right-wing justices, justices who are too privileged, too male, and too white (Representative Bennie Thompson, a Mississippi Democrat, denounced Justice Thomas as an “Uncle Tom” on New Nation of Islam radio) to reflect the needs of an increasingly diverse American society with its own emerging and evolving sense of justice. That was the basis of President Obama’s declaration that he wanted judges guided by “empathy” rather than by anything so narrow and fusty as the law. (Never mind that “empathy” is a literary device; it is a word that, like “gender,” has made its way into the lexicon of a civil discourse that no longer distinguishes rhetoric from real things, conflating words about life with words about words.) Of course, all that is really just a moralistic way of saying: “We want justices who are aligned with us politically and culturally, and who will give us what we want, irrespective of what the law says.”
Given the new composition of the Court, progressives have an opportunity to rethink that position.
The Constitution is silent on many questions: sexual discrimination, as Yoo notes, but also abortion, homosexuality, irreversible sex-reassignment procedures for minors, and many of the other so-called social issues. The conservative position on the process by which these questions should be addressed (as distinct from the substance of the questions themselves) is that the legislatures must speak where the Constitution is silent. That is not a particularly radical view. (It is not nearly so radical as, say, President Obama’s insistence that the character of the law is mystically dependent upon some agreed-upon set of demographic features associated with those who preside over federal courts.) A more scrupulously originalist (or textualist) approach would have prevented some bad decisions with bad outcomes (Roe) but — as conservatives should frankly admit — some bad decisions with good outcomes, Brown v. Board among them.
As a matter of historical (and counterhistorical) debate, the question of Brown and similar decisions presents us with two main avenues of inquiry: Conservatives may rightly point out that the nation probably would be far better off if the matter of segregation had been handled mainly through ordinary legislative channels, especially in the state legislatures; relying on democratic processes produces more social buy-in, less division, and more organic accommodation of differing views — and the latter is important inasmuch as the different views in question were not limited to white supremacy vs. racial equality but also included enduring questions about the nature and structure of our federal enterprise, the relative role of the federal and state governments, and more. Fair-minded progressives might concede all that and yet still insist that waiting on democratic remedies would have meant inflicting injustice on (in the case of Brown) another generation of vulnerable children who were being victimized in a despicable way in the service of a contemptible philosophy. Without Supreme Court intervention, they say, it is entirely possible that many of those evils would still be with us. And progressives are not wrong about that — it just isn’t a legally or constitutionally relevant consideration.
