Locke and Today’s Judicial Activism

So here’s a taste of what I’m going to say at BYU on Friday. I hope to see you in Provo. It’ll be hard, but not impossible, for you to buy me a drink or a coup of coffee:

Marriage has become, we can say, individualized or Lockeanized enough that homosexuals can reasonably wonder why they are being excluded. It seems to them oppressively stigmatizing or degrading to be arbitrary denied benefits and recognition available to our citizens in general. Distinctions that used to seem necessary and proper, as the Court says, now seem to be based on pointless or merely prejudiced deprivations of liberty.

That the American people, working through their legislatures, could choose to vote in same-sex marriage has actually never been in doubt, although the possibility was only given serious thought only very recently. What’s new, of course, is the idea that the question—being a matter of individual liberty or autonomy—isn’t left to the people. And so the people opposed to the same-sex marriage are said not to have reasons worthy of trumping liberty, and their prejudice is no different from, say, racism. What’s new is the rights-based tendency to stigmatize those opposed to same-sex marriage as unjust, as deniers of the self-evident truths that bind us all together.

It does make a strange sort of sense to say that same-sex marriage didn’t used to a constitutional right, but it is now. It makes a kind of sense to say that we’ve worked out a dimension of individual liberty or autonomy to which our Founders were blind. We’re still all about their devotion to liberty, but we’ve progressed by working its implications through. So what’s self-evident to us is more consistent or expansive than what was self-evident to our Founders. And all Americans today are bound by what we can know about who we are as beings with inalienable rights.

Who can deny that the Court is right that what we have here is a new birth of freedom, and arguably one consistent with individualistic principles that we can arguably find among our Framers and in the Constitution itself? It’s hard to say, let me repeat for emphasis, that this view of freedom is an alien importation of Hegelian idealism into our country by the Progressives. Its premise is that the individual is in no sense a part of History or his country or his species or anything els. He exists for him- or herself. This expansive view of individual freedom might be the cause of a troubling birth dearth that may endanger our country or, who knows, maybe even our species. But we still can’t say we can compel free individuals to think of themselves as part of anything greater than each of their selves.

Our Court now affirms what might be called Locke’s “nominalism.” Words are weapons to be used to maximize individual liberty. That’s different from what might be called Progressive nominalism; words are weapons to advance History, because particular people are nothing but Historical products and History fodder. It’s also different from what might be called Darwinian nominalism; words are weapons for the flourishing of the species because people, whether they know it or not, are basically species fodder. The Lockean view is that we become, as individuals, more free from nature and each other over time. And the Court’s view is that its own words are the main weapons in the progress toward individual liberation.