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Originalism and judicial restraint, part IV
Chris Green

(Previous installments: part I, part II, part III.)  Part II mentioned Justice Jackson's famous concurrence in Youngstown Sheet and Tube v. Sawyer as an example of inappropriate (activismometer level 5) judicial activism, given the requirement that judicial assertions about the Constitution shouldbe backed with knowledge regarding the critical facts. Courts that are agnostic about those facts should refrain from contradicting other branches' assertions about the Constitution. Justice Jackson, however, simultaneously (a) claimed he could not resolve which side had the better argument regarding the historical meaning of "executive power" and "legislative power," but (b) voted to disagree with President Truman's interpretation of the relationship of those powers.

Roe v. Wade's famous agnosticism about the beginning of life is another classic case. "We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer." If knowledge is the norm of assertion, this should be the prelude to deference to elected officials regarding whether fetal life is a sufficiently-important interest to justify abortion restrictions. But not for Roe.

Moreover, Roe itself undermines the chief argument for supporting a right to abortion notwithstanding possible fetal personhood: Judith Thomson's "violinist" argument from bodily integrity. Speaking of Fourteenth Amendment personhood, the Court says, "If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment. The appellant conceded as much on reargument."  Thomson would not agree, because the personhood of an aggressor--a burglar, say--does not give the aggressor an absolute right not to be killed (or forced to evacuate the premises). There are, to be sure, issues about whether the fetus is relevantly similar to a burglar. But Roe entirely ignores this issue, claiming that the status of the fetus would, if resolved in favor of a sufficiently high status, settle the case. Given the later statement of agnosticism about the status of the fetus and knowledge as the norm of judicial assertions about the Constitution, Roe should have stayed its hand.

The agnosticism about the value of heterosexual family environments in the Ninth Circuit's Perry decision, followed by the Second Circuit in Windsor in its footnote 6, poses a very similar issue. The Ninth Circuit spoke at length, and persuasively, about the symbolic power and social meaning of the word "marriage" to the plaintiffs, above and beyond the specific rights regarding adoption, hospital visitation, and the like, which gay couples still have in California, Proposition 8 notwithstanding:

[W]e emphasize the extraordinary significance of the official designation of "marriage." That designation is important because "marriage" is the name that society gives to the relationship that matters most between two adults. A rose by any other name may smell as sweet, but to the couple desiring to enter into a committed lifelong relationship, a marriage by the name of "registered domestic partnership" does not. … [T]he designation of "marriage" itself … expresses validation, by the state and the community, and … serves as a symbol, like a wedding ceremony or a wedding ring, of something profoundly important.

However, when it came to the possible effect of an expansion of the word "marriage" to new cases, the court's sensitivity to the dynamics of social meaning suddenly disappeared. Unlike Judge Walker's decision at the district court, which straightforwardly rejected on the merits the argument that heterosexual child-rearing environments have special qualities worth encouraging, the Ninth Circuit refused to engage the issue, because it now considered labels irrelevant absent a difference in underlying rights:

We need not decide whether there is any merit to the sociological premise of Proponents' first argument—that families headed by two biological parents are the best environments in which to raise children—because even if Proponents are correct, Proposition 8 had absolutely no effect on the ability of same-sex couples to become parents or the manner in which children are raised in California. As we have explained, Proposition 8 in no way modified the state's laws governing parentage, which are distinct from its laws governing marriage.... Both before and after Proposition 8, committed opposite-sex couples (“spouses”) and same-sex couples (“domestic partners”) had identical rights with regard to forming families and raising children.... Similarly, Proposition 8 did not alter the California adoption or presumed-parentage laws, which continue to apply equally to same-sex couples.... In order to be rationally related to the purpose of funneling more childrearing into families led by two biological parents, Proposition 8 would have had to modify these laws in some way. It did not do so.

The positive value of the term "marriage" thus seems, in the Ninth Circuit's view, to be a completely free resource.  In trademark dilution cases, however, courts and commentators have seen the obvious effect that expansion of a symbol will have on the value of the symbol for its original uses. For instance, here is Frank Schechter's explanation in The Rational Basis of Trademark Protection, 40 Harv. L. Rev. 813, 825 (1926):

The real injury in all such cases can only be gauged in the light of what has been said concerning the function of a trademark. It is the gradual whittling away or dispersion of the identity and hold upon the public mind of the mark or name by its use upon non-competing goods. The more distinctive or unique the mark, the deeper is its impress upon the public consciousness, and the greater its need for protection against vitiation or dissociation from the particular product in connection with which it has been used. 

Here is Justice Frankfurter's explanation of trademark dilution for the Court in Mishawaka Rubber (1942):

The protection of trademarks is the law's recognition of the psychological function of symbols. If it is true that we live by symbols, it is no less true that we purchase goods by them. A trademark is a merchandising shortcut which induces a purchaser to select what he wants, or what he has been led to believe he wants. The owner of a mark exploits this human propensity by making every effort to impregnate the atmosphere of the market with the drawing power of a congenial symbol. Whatever the means employed, the aim is the same—to convey through the mark, in the minds of potential customers, the desirability of the commodity upon which it appears. Once this is attained, the trademark owner has something of value. If another poaches upon the commercial magnetism of the symbol he has created, the owner can obtain legal redress.

None of this is to say, of course, that "marriage" is literally a trademark, or even that the sort of social-meaning dilution that is presumed in trademark law would necessarily impair the value of "marriage" as an honorific. The suggestion is only that the social meaning of "Coca Cola" and the social meaning of "marriage" might reasonably be taken to operate the same way, and an argument is required to explain why they would not. If Judge Walker is right, of course, the value of "marriage" would be maintained by his decision, precisely because, on his view of the facts, homosexual child-rearing environments are just as good as heterosexual ones. But that is the very issue on which the Ninth Circuit claimed agnosticism.  I thus classify Perry and Windsor as Level 5 instances.

Still to come: legislative and executive activismometers, an assessment of indeterminacy objections to originalism, application to other issues in constitutional construction, and perhaps engagement with historical materials.