Writing for The National Constitution Center, Lyle Denniston pinpoints the crux of the nation’s protracted same-sex marriage legal battle:
[it] will come down to a debate about granting a new right to a group of people, or confirming a right that is historically contained in the Constitution.
Denniston doesn’t consistently name the views, so for sake of reference let the former view be “invented rights” and the latter “discovered rights.” The Ninth Amendment seems to provide a justification for discovered rights:
“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”
That very promise, at least in one interpretation, set America and its institutions on a more or less continuous journey of discovering what those unspecified rights might be.
I’d like to draw out the ontological implication of discovered rights. Or rather, a paleontological implication. It would seem on this view that constitutional rights are always existing, like some fossils that lay hidden, waiting to be dug up at the right moment in history. It would seem to invite a type of metaphysical Platonism. It might be like the Augustinian doctrine of traduccionism, the idea that you, me, and all descendants of Adam were actually present within him at the Fall of Man. What one thinks of traduccionism theologically is one thing. But constitutionally, wouldn’t it be a little absurd to posit that all future rights were somehow actually embedded in the document at the time of the Founders, waiting to be unpacked in a more progressive time? Could I now be writing words that contain new, untold rights of future generations? It seems quite absurd.
I find the alternative view better. Rights when enumerated, are spoken into being as new creations. Metaphysically, they would seem to be constructs. This does not make me a rights nihilist, but it might make me a rights nominalist.
Denniston frames the driving question of the more skeptical view this way:
What gives a new group, seeking constitutional protection, the right to ask that it get a new right all of its own?
But for those who would unpack preexisting rights, the question is, “Why should guarantees of equality of fair treatment be frozen in constitutional time?”
Notice the language: “equality of fair treatment.” The meaning seems under-determined, but to me the phrase looks redundant. Doesn’t fair treatment already imply an equality of consideration?
Take potential U.S. presidents Arnold Schwarzenegger and Madonna. It may be that the Constitution on procedural grounds fairly prohibits foreign-born Arnold from assuming the office of presidency but permits Madonna for the job. In this case, both persons can be equally and fairly considered, while the outcome is unequal but fair.
Denniston presents a final juxtaposition of discovered rights versus invented rights:
Is it a sweeping right to choose one’s life mate without interference by government? Or is it a right that is fundamental only because it has deep roots in the traditional definition of one-man, one-woman marriage?
The first alternative is deeply twisted logic. The failure of government to affirm one’s very personal life choice does not constitute “interference.” This again confuses the positive right to receive something from government with the negative right to be left alone by government.
Denniston’s second alternative of rooting an individual right to marriage in tradition doesn’t sit quite right, either. The third, unpresented alternative is, why think marriage is a right at all? It seems to me that marriage, especially on the child-centered natural law view, is not anything more than a privilege or duty done for the public good. Let legal marriage bet distinct from personal, theological, and cultural conceptions of marriage.
Just as a childless individual pays taxes for and obtains the general benefits of public education, so we all generally benefit from stable child upbringings that obtain when men and women fulfill the obligations and responsibilities entailed in a marriage covenant. On this overlooked view, if there is a right to marriage, it does not belong to individual citizens, couples, or throuples, but to society as a whole.
This is why I find it especially alarming when attorneys general choose not to defend state constitutional amendments defining marriage as between one man and one woman. Protecting an arguable public interest should not be left to personal whim!
If marriage is a policy in the public interest, we should consider that individual rights may not be able to expand forever. It should be becoming clear that digging up or inventing new rights is at best an absurd exercise, and at worst, damaging to the nation.