Friday, June 26, 2015

History Will Be Heard

It's an interesting fact about history that nobody cares about process. If, say, the Constitution supplanted the Articles of Confederation while completely ignoring the latter's provision that it could only be amended via unanimous consent, that fact is lost on pretty much everyone. Likewise the "ratification" of the Reconstruction Amendments by southern states -- done at gunpoint following the civil war -- or for that matter the technical question about whether states had a right to secede from the union in the first place. There were many reputable legalistic critics of Brown v. Board when it came down in 1954, but today the importance of abolishing legal segregation completely overshadows any question over whether the decision was "technically" correct. This isn't to say that results are all that matters -- it is a good thing that we pay attention to process. We do care about it, and we're right to care about it. But it is a concern that fades very quickly once the decision has been made. For all the energy it takes up at the time, attention to process is not something that makes it into our historical memories.

It's interesting to think about this in terms of today's 5-4 decision striking down gay marriage bans. The dissenters -- Chief Justice Roberts and Justices Scalia, Thomas, and Alito -- all have perfectly cohesive legalistic arguments on their side (though I'm ultimately not persuaded by any of them). But I am curious how they think history will view them. After the Court struck down parts of the Defense of Marriage Act, the Onion declared "Scalia, Thomas, Roberts, Alito Suddenly Realize They Will Be Villains In Oscar-Winning Movie One Day." That's almost certainly true. Obergefell, I predict, will be a Lawrence and not a Roe. Public opposition to same-sex marriage will rapidly disappear, and in another generation this decision will be seen as an obvious forward step for the cause of justice; the dissenters clearly retrograde and in the wrong. And I think each of the dissenters know that, and thus know that history will not treat them kindly. They are staring history down.

I say this neither as a form of condemnation nor laudation. It's just an interesting question. Is that a conscious choice? Are they okay with the sacrifice? What is it that motivates them to make it, knowing that there is no vindication waiting for them at the end? It is one thing, after all, to stand against society secure in the knowledge that "history will be heard." It is another to do so while knowing that history, too, will pile on yet further; consigning even the exculpatory reasons for your dissent to obscurity and irrelevancy.

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