So I'm sorry for yet another relatively pointy-headed post. I'm still thinking about the twin pillars of our modern, scientific self-understanding—Descartes and Darwin. For today, I'm thinking about how the right to same-sex marriage might emerge from a Constitution understood in a consistently Lockean/Cartesian way. I'm not taking a stand on any issue for today.
And I'm not saying that this understanding of our Constitution is complete or accurate. I am saying that there's a certain individualistic or personal logic that can explain recent Court decisions.
Alexis de Tocqueville, in the best book on America and the best book on modern liberal (or individualistic, Lockean/Cartesian) democracy, observes that the Americans are Cartesians who’ve never read a word of Descartes. The Cartesian method—the radical doubt that produces the conclusion that the only certainty is the self-conscious “I”—is also the democratic method. The democrats achieves intellectual liberty by methodically or habitually doubting the word—the authority—of other persons. If I trust what you say, then I’m ruled by you, and I surrender my self-sovereignty.
Democratic Cartesianism is full of words like “deconstruct” (good) and “privilege” (bad). The democratic theorist deconstructs any theory that privileges one person’s word over another. So the democratic theorist—say, Whitman or Emerson—preaches nonconformity, or personal resistance to being absorbed into a personal whole greater than oneself. So to be a democratic “I” is to be liberated from the authority of priests, poets, philosophers, preachers, politicians, (theoretical) physicists, parents, and the personal, judgmental God. It's also to be liberate from personal claims about what is according to nature. As, say, Whitman explained, American personal freedom is the unlimited, indefinite movement away from nature.
This Cartesianism, for some Americans, is clearest in the Constitution. Our Constitution treats human as free or wholly detached or self-sufficient persons. The “I” is not subsumed into some class or category—as a part of religion or race or class or even gender or even country. The Constitution, of course, can’t help but recognize the distinction between citizen and non-citizen, but even that distinction is treated as artificially constructed or not some deep statement about who anyone is.
The Constitution of 1787 is maybe most striking in its silence on God, in its decision not to employ theology politically. But not only are persons freed from “civil theology”—from the degrading and destructively seductive illusion of being part of a political whole, they are in a way free from biological nature. The Constitution does not recognize the natural division of members of our species into men and women. Americans are understood to be free to consent to be governed by God and even nature, and the idea of consent, of course, dissolves the authority claimed on behalf of God and nature by the word of the philosophers and theologians of the past.
The founding American limit to this democratic Cartesianism or Lockean individualism was federalism. The states were free to treat people as men and women, black and white, and even Christian and Jews. The Bill of Rights, after all, was constructed to be limits only on the power of the national government. Laws concerning marriage and the family—which necessarily understand persons to be intrinsically social or relational beings with duties to others—were reserved to the states.
From a purely Cartesian perspective, the states were allowed to be unjust by treating persons as other than free individuals. The result was legalized racism, sexism, and so forth. The result also strongly discouraged divorce and marital infidelity and supported parental and especially paternal responsibility. From a Darwinian view, the result supported the pair-bonding, reproducing, and young-raising that are indispensable for the flourishing of the species. The states even thought of themselves as supporting religion in a nonsectarian way to support a common social morality that went beyond the mere protection of rights.
Our Court has understood the Fourteenth Amendment to be the completion of our Cartesian Constitution, to have overcome a defect that was, in truth, the product of an unprincipled founding compromise. The Bill of Rights, it decided, is iimplicitly incorporated in the Fourteenth Amendment. So it can now be applied to strike down non-individualistic state laws concerning religion, gender, sexual orientation (also, of course, not mentioned in the Constitution), race, even citizenship, and so forth.
The Court actually has largely abandoned that idea of “incorporation,” replacing it with an expansive interpretation of the single word “liberty” in the Fourteenth Amendment. (One reason among many for this replacement, of course, is to overcome the embarrassment that “the right to privacy” doesn’t actually appear in the Bill of Rights.)
The Court, in Planned Parenthood v. Casey, explained the state can’t unduly interfere with a woman’s right to choose an abortion because women have the right not be treated as biological women under the law. They have the right to be free persons fully engaged in political and economic life, and they can’t be understood to be reproductive machines for the state. Women, just like men, have the right to define for themselves the mysterious freedom that constitutes the “I” that is each of their existences.
In Lawrence v. Texas, the Court added that free persons have the right to define for themselves the content of their intimate relationships. The law can't compel that those connections be limited or shaped by the biological distinction between the sexes. The consensual connection between “I” and “I” is to be unconditioned under the law by what are only said to be natural or traditional or political or religous imperatives.
The word “liberty” in the Constitution, the Court went on, doesn’t refer to any fixed understanding of who we are by nature. Instead, it’s a weapon to be used by each generation of Americans to liberate themselves from limits once regarded as necessary and proper but are now revealed to be merely arbitrary. The “I” becomes less blinded or deluded over time. That’s why the Court will probably conclude that same-sex marriage didn’t used to be, but is now, part of personal, constitutional liberty. It became a right as we freed marriage from any necessary dependence on social or relational duties.
But surely the last stage in this evolution will be the deconstruction of marriage itself. By affirming the right to same-sex marriage, won't our law still privilege marital over non-marital autonomous relationships? Won't it still degrade the autonomous persons who choose to express themselves intimately outside of a social institution that doesn't really express the truth about who each of us is?