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Essay: Constitutional culture

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Constitutional culture, by virtue of its ever changing nature, is “vast and slippery” with an amorphous quality. The definition and use of this term has varied by author, and the uses have ranged from haphazard, general characterizations to detailed but limited accounts. For example, James Fleming and Linda McCain have used the term to reference generally the universe of constitutional rights in their article Ordered Gun Liberty. In the international arena, the term has been used to reference constitutional culture as the institutional and attitudinal preconditions necessary for democracy to thrive. Robert Post uses this term to establish a dichotomy between constitutional law and constitutional culture in order to evaluate the influence of one on the other.

Crafting a specific, detailed definition to constitutional culture accounting for the entirety of the specific institutional and rhetorical structures would require a broader, more comprehensive account than what I will be providing here. In fact, it might be best left to specific “time-place” delineations as culture changes over time, with more components being added and subtracted as time progresses, and each debate is specific to context, often adopting constitutional and ordinary political elements, utilizing norms and methods specific to that arena of debate. Andrew Siegel’s definition is more closely aligned with the project of this paper describing a broader account of cultural factors:
“an interlocking system of practices, institutional arrangements, values, commitments, norms, habits of thought, and tradition that determine what questions we ask, what arguments we credit, and how we process disputes, and how we resolve those disputes.”
To narrow the scope here, I will be specifically looking at the manner in which societal arguments and arguments against the Constitution become arguments through the constitution, channeling dissent, reaffirming Constitutional legitimacy, and in effect, reconstituting society through conflict, dialogue, and interpretation.

B. Benefits of a Cultural Perspective:

To think of this as a culture highlights the degree to which these ideas and phenomena are subject to modification via rational argument, yet reflective of deeper, more guttural, inchoate commitments. This perspective emphasizes the relationships between ideational and concrete structures. It also serves as a bridge between the nature of constitutional evolution and legal precedent by emphasizing the degree to which extralegal circumstances modify the Constitution. By focusing our attention to how our “inchoate assumptions and undertheorized attitudes influence our receptivity to both particular doctrinal formulations and particular institutional arguments.”
Approaching this from a constitutional culture perspective allows for a high level discussion of both the long standing, revered practices as well as new, novel developments in culture, law, and technology, so that observers can draw connections between them. If our goal is to craft a compelling account of both why and how constitutional culture augments national discussion and legal development, we should analyze the practices and norms of various institutions.

II. The Constitution and Constitutional Culture

A. Role of the Constitution

Constitutions, by definition, seek to establish and impose order on the political world through the use of language. They establish a structural framework out of which their respective governments operate, both constraining and expanding governmental power, and embody commitments between individuals and society. Yet, constitutions do not arise out of nothing, but rather they encapsulate the political culture out of which they are born, elevating prominent ideas within a polity while submerging others. A constitution is the product of the language used as well as the alternative ideas and frameworks considered, which both existed before its drafting. Therefore, the culture and polity provide the constitutive elements of the constitution itself. The constitution’s adoption, then, creates and maintains a political culture because it is an “intervention in time, specifically into the political time that characterizes a polity,” yet after its adoption, the Constitution flows within the boundaries set by the political culture and by the constitution itself, gathering meaning and legitimacy through interactions with society.

The United States Constitution serves as a unifying lynchpin of American Constitutional Culture. The US Constitution is the one document upon which all competing accounts of the American polity converge, and of which, each account contains a vivid picture. Even for those who believe the “our nation’s constitution is only partly embodied in the actual text,” it is still that text which serves as the canonical cornerstone for all the narratives that define us as a singular people. From one angle, it is central to a complex matrix of symbols, values, and narrative surrounding the American mythos, and from another, it helps set of norms, processes, and habits of thought. Both of these angles influence what questions are asked, what arguments are made, how those arguments are evaluated, and how societal actors resolve those disputes. Therefore, the Constitution contains both an aspirational function and a pragmatic one, constraining and changing, as well as being affected by, the political culture.

B. Constitutional Culture:

Narrative, Social Norms, and Expectations

Whether we realize it or not, much of the dialogue about policy, laws, rights, and regulations focuses on the relationship between citizens and the government, among citizens, and between levels of government. For example, in the debate over healthcare, politicians and voters alike discuss how the healthcare bill would work: what role with the government have in shaping healthcare, which citizens will bear a larger tax burden for those who cannot contribute, and how will state and federal governments delegate responsibilities. These relationships are constantly in flux. Each party continually navigates these connections, negotiating their obligations and benefits. Much of how individuals define their role and sense of self in relation to others in society derives from their understanding of their place in the national narrative.
Generally speaking, narratives are forms of human thought that are “particularly efficient for memory storage.” Individuals are often able to recall a sequence of events better than a complex list, and as a result, translating information into a narrative sequence is method of memorization. Humans implicitly create narrative explanations and abstract narrative structures from our own experiences, and individuals impose narrative structures on the world. Narrative memory provides the means for recalling events in temporal sequences, organizing the past, predicting the future, providing explanations for events, understanding ourselves in an autobiographical sense, internalizing expectations in reference to social structures and roles, creating norms and expectations by virtue of what conforms and deviates from previous sequences, and establishing social myths and shared memories which frame the experience of contemporary events. These narrative structures give meaning to the events they incorporate, for humans attempt to understand past and future events in relation to understood patterns. When events deviate from these understood patterns, they require an explanation, which will be drafted in relation to other elements of the narrative.

Narrative performs a dual function for human thought. It allows us to organize events and information, both mundane and exceptional, as well as reorient expectations in light of new information. At the same, it uses patterns of events and information to frame what is expected in human life, and it “bestows legitimacy and authority on the expected.” This happens whether a person is interpreting a series of social cues in a coffee shop or attributing motives to a specific person’s actions. When individuals explain people’s behavior, they “ascribe purposes, desires, intentions, and beliefs to them” to account for deviations from what is culturally expected. Attributions of belief and purpose often make sense to people because they rely on implicit cultural norms and mores, understanding the former in terms of the latter.
In society, these narratives are relayed between individuals, generations, and groups through social learning, direct communication, and avenues such as mass media. Individuals employing similar narrative structures will understand similar events in similar ways, and conversely, those using different narrative structures would understand events differently. The transmission of narrative structures between individuals is a continually evolving process, a production between continued interaction and improvisation between others, media, and institutions, and these interlocking expectations which are derived from narrative structure have a stabilizing effect on social conventions to prevent them from diverging too wildly.

When an individual encounters a new experience, these modifications become part of their incorporated pattern, which is then used for interpreting subsequent events. In this sense, a person’s cultural understanding can be constantly rewritten and increasing, and an expanding pool of narrative adds flexibility to a person’s ability to comprehend events. New stories can be crafted and grafted on to others to create new meaning. In that way, stories in society can be remarkably similar to older ones, yet they can be used for vastly different purposes.
In order to see the present as a product of the past, the process of organizing concepts into a narrative structure will have already taken place, for narrative structuring is the process of “organization and matching.” Each event can have a multitude of “hooks” or focal points, which can connect a variety of events to others in the previous chain, so individuals can recall circumstances in different lights, from a variety of perspectives, and with alternate interpretations. Events which do not mesh with a coherent narrative are either rationalized into it, altered to fit, as previously discussed, or discarded. However, with enough effort and attention, a person can incorporate new foci into their perspective. For example, by studying another culture with sufficient attention, important elements of that culture can gain significance to a person’s recollection.

Therefore, at the center of our national narrative is not a single understanding of what it means to be a member of the polity, but rather there are competing narratives of woven together into unique patterns, generating sites of competing interpretation. These stock stories, to use Balkin’s and Levinson’s language, “are both descriptive and prescriptive: they not only frame our sense of what has happened and how events will unfold in the future,” but also explain how those events should unfold and why. To provide some examples of stock stories used in American culture, the “idea of America,” which typically arises at the center of the American narrative, begins in earnest at the signing of the Declaration of Independence, the Revolutionary War from Britain, and the United States Constitution, which distills America’s sense of self to legal ideals that have gathered an almost religious aura. However, there are stock stories about Americans fleeing religious persecution and settling in the New World, American’s pushing West, conquering the wild frontier, Americans seeking liberty, about America being an exceptional country never possessing a hierarchical social class akin to those in Europe. At different points in America’s history, these stock stories have taken on different interpretations when used by competing groups. Different actors weigh in as the nation’s parties shape and define concepts, establishing firmer boundaries on elements of their narratives. Stories are as “central to constitutional interpretation as any jurist,” given their role in creating the constitutional expectations that inform the populace at large.

To understand the influence and interplay of narrative within the thematic elements of national discussion, it is not necessary to believe that people read the text of judicial opinions, pore over the contents of founding documents, or that people are aware of their appeal to narratives in the arguments they make. Individuals contribute to the collective story by virtue of their participation in society, maintenance of established norms, and pursuing their daily lives, so the effect of a narrative often takes place below the surface. In many ways, the very fact that Americans hold equality and liberty before them as an ideal says much about the aspirations of the governing narrative and the polity as a whole. As one commentator remarks, “the legend itself seeks validation in the form of realization on the ground and the drive for actualization has helped shape the laws of the country over two and a half centuries.”

Narrative and Legal Precedent:

In the context of constitutional precedent and legal interpretation, stock stories also play an influential role. The United States, using the common law tradition derived from Great Britain, determines current legal conclusions based on appeals to precedent in analogous court decisions from the past. In constitutional adjudication, the precedents and analogous court cases inevitably refer back to the Constitution as the supreme law of the land. In doing so, judicial opinions wrestle with conflicting legal arguments about the meaning of America’s constitution, and justices put forth competing narratives “through and against which Americans debate the meaning of their past and shape their future.” Legal scholars use narrative in two forms then: adding to the stock of usable case law for the future and doing so in such a way that conforms with the public understanding of constitutional ideals. In other words, they must weave compelling, persuasive narratives that make use of past precedent, revered societal values, and social understandings to achieve their desired conclusions. New legal arguments, in order to be effective, must make their case as an addition to both binding precedent and the national narrative, rather than a novel argument or unique take.

As Justice Souter, Kennedy, and O’Conner write in Planned Parenthood v. Casey, “no judicial system could do society’s work if it eyed each issue afresh in every case that raised it.” The rule of law, then, requires such a “continuity over time that a respect for precedent is, by definition, indispensable.” Yet, precedent does have its limits, as the Court notes, for “a different necessity would make itself felt if a prior judicial ruling should come to be seen so clearly as error that its enforcement was for that very reason doomed.” Therefore, even though a justice might rule differently if the issue was being presented before the Court for the first time, the reliance on legal precedent by judicial actors alters subsequent adjudication such that there is a substantial burden for those who wish to alter course. Acknowledging the commitment and price paid by those who participate in the system, yet nevertheless run the risk of unfavorable decisions, the Court “implicitly undertakes to remain steadfast, lest in the end a price be paid for nothing,” for the “promise of constancy, once given, binds its maker for as long as the power to stand by the decision survives.” Thus, the desire to uphold precedence is both pragmatic and moral. It assures that actors can rely upon the law, fostering commitment and participation, and the legitimacy of the court must be earned over time, “like the character of an individual.” If the Court’s legitimacy is undermined, “so would the country be in its very ability to see itself through its constitutional ideals. The Court’s concern with legitimacy is not for the sake of the Court, but for the sake of the Nation to which it is responsible.”

The Court’s focus the accrual of legitimacy over time indicates that it depends on a history, a narrative of decisions displaying consistency, that is “written by several hands but in the same spirit and purpose.” The sequence and consecution of narrative additions cannot be random, but rather logically entailed by what came before. Confirming this, the Court remarks:

“Because not every conscientious claim of principled justification will be accepted as such, the justification claimed must be beyond dispute. The Court must take care to speak and act in ways that allow people to accept its decisions on the terms the Court claims for them, as grounded truly in principle, not as compromises with social and political pressures having, as such, no bearing on the principled choices that the Court is obliged to make. Thus, the Court’s legitimacy depends on making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the Nation.”

The most notable phrase in the aforementioned quotation is “sufficiently plausible,” for an observer must ask what it means to be sufficiently plausible enough to be accepted by the nation. Indeed, the logical of the meaning of sufficiently plausible is circular in nature, for to be plausible, it must fit seamlessly into the narrative at play. Yet, to fit seamlessly, it must be sufficiently plausible, upholding the idea that the law is steadfast and consistent. Considering, then, that what qualifies to fit into the narrative is simply what “suffices,” the function of narrative allows for debate between opposing parties which understanding better fits the narrative, and in many ways, the dialectic between opposing actors provides an evaluation of the plausibility of an argument.

Ronald Dworkin provides an excellent metaphor, referring to law as a chain-novel or parlor game, explaining how narrative functions in constitutional adjudication. In his chain-novel metaphor, the object is to write a novel, just as in each instance of adjudication, the object of each adjudication is to write a coherent body of law. Each actor, including the participants and judge in the game, must read what has been previously written and then compose a new chapter to push the story along in such a manner that logically follows from what came before it. In this sense, the past is strikingly held hostage to the present, as present interpreters determines its meaning.

The methods of constitutional interpretation can be seen at work in several court cases. The ardent defense of stare decisis in Planned Parenthood v. Casey serves as one example, and in Miranda v. Arizona, a reader can see the justices debating amongst themselves about the proper interpretation of constitutional events. In Miranda v. Arizona, which extended the Fifth Amendment protection against self-incrimination to police interrogation of criminal suspects, the Chief Justice Earl Warren begins the majority opinion by stating the following:

“The cases before us raise questions which go to the roots of our concepts of American criminal jurisprudence: the restraints society must observe consistent with the Federal Constitution in prosecuting individuals for crime.” Defending the holding of the Supreme Court, he continues by asserting that the start with the premise that “[their] holding is not an innovation in [their] jurisprudence, but is an application of principles long recognized and applied in other settings.”

In other words, the holding in Miranda is not a new understanding of constitutional rights, but rather it merely recognizes the history and explicates “basic rights that are enshrined in our Constitution.” Citing Cohens v. Virginia, Chief Justice Warren quotes former Chief Justice Marshall, stating that these rights were secured “for ages to come, and . . . designed to approach immortality as nearly as human institutions can approach it,” recognizing the latent meaning of the narrative.

A dissenting opinion in Miranda by Justice White rebukes predominant narrative asserted by the majority, claiming that “the Court has not discovered or found the law in making today’s decision, nor has it derived it from some irrefutable sources; what it has done is to make new law.” In a separate dissent by Justice Harlan, he refers to the Court’s majority decision as a “new constitutional code of rules.” He sets out to mark the precise point at which the Court “jumped the rails,” or the point at which they deviate from his understanding of the collective narrative of case law. “Astonished that the Constitution can be read to produce this result,” he ultimately ends his dissent with a quote from Justice Jackson in Douglas v. Jeannette, asserting that This Court is forever adding new stories to the temples of constitutional law, and the temples have a way of collapsing when one story too many is added.”

Whether explicitly or not, the majority opinions and the dissenting opinions rely on the idea that the ending written determines the meaning of the previous entries, and they discover that, however provisionally, the current interpretation will determine the meaning of the earlier iterations for future generations. Future interpretations will be based on the current interpretation of the earlier iterations. In that way, narrative functions in a way to steer constitutional development, imparting great importance to each episode in constitutional progress. “It is the peculiar nature of narrative,” scholar Peter Brooks writes, “as a sense-making system that clues are revealing, that prior events are prior, and that causal events are causal only retrospectively, in a reading back from to the end.”

Channeling Dissent

The Constitution enables and constrains culture by channeling dissent against the Constitution through the Constitution. As we discussed earlier, the Constitution serves as the cornerstone for narratives and visions in their contest for legitimacy. As a result, the Constitution provides the language and framework used in the competition. Supplied understandings about advocacy and authority by constitutional culture, competitors navigate through approved grooves or channels to achieve their desired outcome, advancing claims about constitutional meaning moving forward in the context of a shared past using language of public values. These grooves of constitutional culture, generated and maintained by social and institutional norms, regulate the manner in which claims are made and the nature of the claims themselves.
Changes to the constitutional order can be effected by various mechanisms. For example, in a more traditional and obvious sense, a direct constitutional amendment can be passed through Article V procedures. Alternatively, groups can pursue change by extending existing constitutional protections to previously unprotected cases. Yet, in any event, popular support for the change is almost a prerequisite. Social movements then mobilize to shift popular opinion in favor of constitutional change, and “constitutional culture enables mobilized citizens to engage with officials who enforce the Constitution,” whether it is through lawmaking or other processes. This social engagement occurs regularly, and the process naturally entails dissent. As one social movement, seeking to renegotiate certain social structures, gains support for a specific cause, a counter-movement mobilizes to preserve the status quo. Counter-mobilizing groups often are those who benefit from the prevailing social structure, and the degree of countervailing mobilization often depends on the force and success of the initial movement.
The structure of interactions between a social movement and countermovement vary greatly depending on the approach employed and degree of change sought by the social movement. Yet, there are two conditions imposed by constitutional culture which each must satisfy in order to be a compelling agent of social change (or preservation). Reva Siegel asserts that each contending movement must satisfy a consent and public value condition.

The consent condition “is a historically evolving set of understandings about how citizens and officials interact when their views about the Constitution diverge.” In essence, competitors must resort to rhetoric and persuasion, rather than coercion and intimidation, and the result is a “community bound by conviction rather than coercion.” Even as the government largely possesses a monopoly on violence, there are norms and laws restricting the use of force against dissidents, elevating persuasion and discussion over violence and conflict. By limiting the use of violence and coercion, citizens are able to advance dissenting views about the meaning of the Constitution largely without fear of harm.

Certainly, at the formation of the United States, mobbing and violent protests took place, resulting in the revolutionary war, but as the American constitutional order formed, discourse and competition within the constitutional system became the predominant mode of change through the use of the electoral and legal institutions. Unlawful conduct isn’t necessarily the same as coercion. It can still satisfy the consent requirement so long as it aims to persuade rather than to intimidate. Take, for example, the civil disobedience that occurred in the Civil Rights Movement. In the push for desegregation, disobedience occurred on both sides, as the Governor of Arkansas refused to permit integration mandated by the Supreme Court and African-American students organized sit-ins.

Yet, the Civil War represents the largest break from the consent condition in American politics, and at the same time, the Civil War is the largest loss of American life in conflict. There are a large number of factors which serve to make the Civil War unique, but ultimately, the effect of the Civil War was likely to strengthen the consent condition. After the Civil War, a number of changes were made to the constitutional order, but perhaps the greatest effect was the mark it left on the American narrative and American psyche.

By requiring consent to constitutional order, it both promotes dialogue, empowering individuals to share conflicting views, and limits the manner in which advocacy can be performed. A dissenting perspective can still diverge from existing interpretations and conventional forums, so long as it appeals through the form of an assertion about the meaning of the Constitution, a source of shared tradition and understanding between the speaker and the audience. A dissenter must embrace the basis of a shared tradition, rather than withdraw from it. Therefore, it functions as a constraint on argumentation by restricting the manner in which argumentation can occur, and it shapes how citizens and officials can interact with in a democracy.

While the consent condition requires that individuals submit their arguments by appeal Constitution, the public value condition specifies the manner in which they must present their argument in order to be successful. More specifically, the public value condition requires advocates to translate their partisan judgments into a language of common tradition shared with the audience, using the body of narratives, principles, commitments, and history mentioned earlier. Using the narratives mentioned earlier, individuals translate their own perspectives and arguments into new constitutional understandings for the community to evaluate.

Because constitutional culture provides understandings about the forms of social life to which memories and principles apply, how to apply them, and what constitutes deviations from those forms, new arguments will fail to gain support if they do not persuade others. This act of persuasion takes on multiple forms as organized movements must encounter and reframe the social issues being contested, factoring in counter narratives and concerns crafted by the corresponding countermovement, for competing sides must attempt to persuade the public audience of their legitimacy in the constitutional narrative. At the outset, the proposing side may propose transformative constitutional understandings, but as the public or opposition begins to respond to those arguments, the need for public support incentivizes the movement to qualify those claims. Often, in effort to increase rhetorical appeal, movements internalize a portion of the concerns presented by the opposition. Each side, possibly indirectly, acknowledges the presence of the other in their responses, and this dialectic may moderate a group’s position to better answer the opposing arguments as it justifies the contested social arrangement. By engaging with one another, the social movements craft, moderate, and refine their arguments, which are then heard by public officials. These officials frequently use those refined arguments in crafting legislation and drafting opinions.

Commitments and Imagination

Through this process of repeated negotiation over values and principles among social actors, constitutional culture reinforces and reinvigorates itself, promoting consistent behavior between groups, and it provides stability and unity to constitutional governance through, ironically, conflict and a small amount of instability. The unity, perhaps, is not among existing values, but rather on what function the constitution performs and the project it endeavors to create.

The primary function of a written constitution is to “facilitate collective commitments that transcend time,” and constitutions establish pre-commitments to constrain future behavior. By providing consistency, the Constitution allows for complex systems to flourish and large numbers of people to coordinate behavior in a predictable fashion. Habit provides a bridge between behavior and commitment, as successful “constitutional commitments embed themselves in habitual behavior.” As citizens are conditioned through norms and established values, they develop commitments to the constitutional culture in which they participate. For example, if a citizen “disagrees with a given decision and are nonetheless called to comply with it, their willingness to do so is based, in no small part, on the habits of compliance with the rule of law which legitimate the decision.” When citizens participating in social movements engage in their practices of dissent, as authorized by constitutional culture, they contribute to both individual and collective habits which legitimize their actions and the end result, whether it favors them or not. The process of narrative development comes into play here as well, for each action contributing to the understood practices of dissent and constitutional conflict become incorporated into an ever-expanding narrative, providing the force of tradition, habituation, and expectations to future additions.

Underpinned by a communal commitment to the Constitution, the process of constitutional culture also provides a structure for conversation about collective aspirations in society. Continued renegotiation allows individuals, as participants in this culture, to imagine, reason, and decide on new commitments to be adopted over time, and the text itself provides for the ideals to which the community can aspire. Imagination about the future, even in doctrinal areas such as substantive due process, which demand a look backward in time to examine the past for evidence of the nation’s history and tradition, requires an interpretive frame that constructs an imagined vision of the future that provides cultural continuity with the past.

Perhaps one of the largest criticisms of Constitutional Culture is that it doesn’t necessarily serve the purpose of channeling dissent into nonviolent forms. The recent growth of the militia movement and constitutional sheriff movements appear to indicate a rejection of properly understood constitutional norms. The Militia movement, as demonstrated by the Bundy incidents in Nevada and Washington, deliberately opposes the government monopoly on force, utilizing their own weapons as a safeguard against perceived tyrannical overreach. In the “Bundy’s Rebellion,” Cliven Bundy, his children, and a host of militia members recruited from across the country began an armed standoff with the federal government, contesting the use of public lands for grazing rights. This serves as one example in the past few decades of armed conflict.

The same concern presents itself with respect to the Constitutional Sheriff Movement. The central idea of the Constitutional Sheriff Movement is that “a sheriff holds ultimate law-enforcement authority in his county—outranking even the federal government within its borders.” In recent years, its membership has grown, and as of September 1st, 2017, the movement asserts it has over 4,500 due paying members, including 200 sheriffs. In 2013, Arpaio, the sheriff recently pardoned by President Trump, along with 500 other sheriffs “vowed not to obey any federal law that required them to confiscate guns from private citizens.” This movement is related to the militia movement, for they have gained traction together as a collection of citizens skeptical of government intervention mobilize. Cliven Bundy even invoked the constitutional sheriff movement when he called on a sheriff to defend him from federal agents in 2013.

Yet, these groups are perhaps some of those which have best employed constitutional culture to their advantage. After all, “constitutionally-mindful militias, minutemen, gun collectors, hunters, and libertarians” fashioned the modern conception of the Second Amendment with “little to no help from the courts, no significant resistance from liberals, and astounding success in public opinion and the legislature.” They wrap themselves in constitutional rhetoric and elevate the Constitution to a deific status, using state’s rights, gun rights, and the Bill of Rights generally to support their actions. In fact, “number of candidates for sheriff or county commissioner around the country have campaigned explicitly on county-first theories of legal power.” Cliven Bundy carried around a small pocket Constitution, from which he frequently quoted.

The Militia Movement’s use of violence doesn’t disprove the utility of Constitutional Culture. Many of those in the Bundy Rebellion were arrested and processed through the legal system, and the movement itself largely represents a deviation from the norm. Unable to effectuate large scale constitutional change, it remains a fringe element, despite its recent growth. Further analysis could be performed to determine the compliance of the Constitutional Sheriff Movements and the Militia Movements with the consent and public value conditions articulated by Reva Siegel, but that is research for another time.

B. Constitutional Culture in the Context of Gay Rights

Background Information: From Romer to Obergefell

Three years ago, the Supreme Court of the United States held that state laws defining marriage as a relationship between a man and a woman denied same-sex couples a right to marry which is protected by the Due Process and Equal Protection Clauses of the Fourteenth Amendment, yet almost fifty years ago, the Supreme Court of the United States refused to even recognize a same-sex marriage claim in Baker v. Nelson. When the couple appealed the case to the Supreme Court, the Court issued a one-sentence order stating that “the appeal is dismissed for want of a federal question.” The progression towards marriage equality has come a long way along two different paths: gay rights and marriage.

With respect to the first, gay relationships were often criminalized in many states around the country. In 1986, the Supreme Court ruled that states were allowed to criminalize same-sex sex in Bowers v. Hardwick. In just a decade, the Court concluded, in Romer v. Evans, that a Colorado constitutional amendment targeting homosexual individuals based on animosity lacked a rational government purpose. Continuing course, the court reversed Bowers v. Hardwick in Lawrence v. Texas, which decided that criminalizing sodomy denied gay individuals dignity, liberty, and equality as protected by the Due Process Clause. After Lawrence v. Texas, the courts began to rule that the exclusion of the gays from the military violated liberty and equality, which ultimately led to Congress repealing the ban.

On the other side of the gay rights movement, the marriage equality debate began in earnest from the 1990’s forward. In 1990, the courts began to scrutinize state restrictions on the rights of same sex couples to marry under state constitutions. However, citizens quickly mobilized against the state court decisions, prompting the Defense of Marriage Act. After the Defense of Marriage Act was passed by Congress, the citizens in Hawaii and Alaska amended their own state constitutions in 1998 to limit marriage to one man and one woman, and this was just the beginning. After the Massachusetts Supreme Court ruled that denying marriage licenses to same-sex couples violated the state constitution in Goodridge v. Department of Public Health, a counter-movement of citizens arose, pushing for state constitutional prohibitions on gay marriage. Before 2014, thirty-one states had constitutional or statutory provisions which explicitly limited marriage to heterosexual couples.

With respect to backlash against the gay marriage movement, some commentators assert that the constitutional amendments and the gay marriage issue brought more conservatives to the polls, contributing to George Bush’s 2004 victory.

In 2013, Hollingsworth v. Perry and US v. Windsor both arrived at the Supreme Court. Perry challenged the state marriage bans under the federal constitution, and Windsor challenged the constitutionality of the Defense of Marriage Act. In Perry, the Court ruled that the parties lacked standing to bring the suit, which sent the decision back to the lower courts, yet in US v. Windsor, they struck down the Defense of Marriage Act. At this point in time, the courts and its observers began to consciously consider the backlash that might stem from judicial decisions. The district judge in Perry asked the plaintiff’s attorneys about the risk of backlash before each side invested heavily in a lengthy trial. Others filed amicus briefs discussing backlash concerns, or authored editorials in mainstream news outlets, such as Harvard professor Cass Sunstein.

When the Supreme Court delivered their opinion on Obergefell in 2015, they recognized the right to marry for same-sex couples. In his dissent, Chief Justice Roberts predicted that “people denied a voice are less likely to accept the ruling of a court on an issue that does not seem to be the sort of thing courts usually decide,” citing backlash as a key concern in judicial intervention for this issue. However, at the time of its decision, public opinion on marriage equality had shifted to such a degree that overt backlash was unlikely to occur. As compliance with Obergefell went off without much backlash and marriage licenses were issued regardless of sex, opponents to same sex marriage began pursuing opposition in other fronts.

Constitutional Character of Gay Marriage: Narrative

The narrative and discourse surrounding the Gay Rights movement took on a constitutional character in two different, yet related, ways. The first includes the rhetoric adopted by the movements, distinguishing the movement and countermovement from the prior social understandings of homosexuality, and the second references the development of legal precedent as it evolved from Baker v. Nelson.
Before the mid-nineteenth century, the specific phrase “homosexual” did not exist, and while people engaged in homosexual activity, it was “not seen as an identifier of personhood.” “Homosexuality” was coined in 1869, creating homosexuality as a distinct, “other,” category from the rest of society, when Dr. James announced he was launching a quest to discover the cause of homosexuality as science tried to make sense of something defined as a sin. The creation of a category connoting abnormality separates out a group of people, rather than behavior, based on who they were attracted to. Various laws were passed which singled out and targeted this group. If the laws did not accomplish separation, “social disapprobation” did, for individuals could be “arrested, fined, fired, evicted, or certainly shunned.” As much of the medical and scientific research characterized homosexuality as an illness, the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders classified homosexuality as a mental illness for both the first and second editions.

According to Teresa Godwin Phelps, the Director of Legal Rhetoric at American University, the representation of “homosexuals as physically dangerous, especially to children” became prevalent despite having little data to support it. A content analysis of articles in Time and Newsweek from 1948 to 1968 “reveals that 79% of the articles depicted gays as sick and 52% as predators, or both.”

On June 27, 1969, the Stonewall Riots changed much of that. Police raided a gay bar in Greenwich Village called the Stonewall Inn, and while such raids were not uncommon at that time, the patrons at Stonewall fought back. Many people attribute the Stonewall riots as the beginning of the Gay Rights movement, and the Gay Liberation front was created as riots spread across New York and other cities. Homosexuals rebranded themselves as “Gay,” identifying themselves “with the African American as oppressed and the Black Civil Rights Movement as a means from oppression to liberation.” In the years following, the Gay Rights Movement emerged as a more prominent movement in society, creating changes to the rhetoric referencing homosexuality.

Perhaps one of the largest criticisms of Constitutional Culture is that it doesn’t necessarily serve the purpose of channeling dissent into nonviolent forms. The recent growth of the militia movement and constitutional sheriff movements appear to indicate a rejection of properly understood constitutional norms. The Militia movement, as demonstrated by the Bundy incidents in Nevada and Washington, deliberately opposes the government monopoly on force, utilizing their own weapons as a safeguard against perceived tyrannical overreach. In the “Bundy’s Rebellion,” Cliven Bundy, his children, and a host of militia members recruited from across the country began an armed standoff with the federal government, contesting the use of public lands for grazing rights. This serves as one example in the past few decades of armed conflict.

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