Over the last decade or so, the gay rights movement made a politically canny adjustment: It began featuring lesbian and gay families who wanted to enter the American mainstream, and the outré postmodernists were less heard from. By outré postmodernists I mean those whose views were unlikely to play well in Peoria.
It now often said that social movements help generate modern constitutional law. Sometimes the claim is made in defense of living constitutionalism, because, according to many scholars, the influence of social movements shows that living constitutionalism has democratic roots and does not consist of rights simply minted by judges. While it is certainly true that social movements play an important role in living constitutionalism, they do not erase its democratic deficit, let alone assure that new constitutional norms reflect the consensus that the amendment process would provide. One reason for the continuing deficit is that justices write opinions to aid some movements and not others.
A case in point is the movement for same-sex marriage.
In previous posts I’ve looked at what Raymond Bruckberger, formerly of the French Resistance turned student of American Constitutionalism, John Courtney Murray, and Willmoore Kendall have had to teach about the American commitment to modern republicanism and its theoretical and practical commitments for effectuating it. We should affirm Murray’s notion that
Civilization is formed by men locked together in argument” and then connect this to the American Proposition and its components of human dignity, constitutionalism, government limited by law as given to America by the common law tradition, self-government as faith in citizens to exercise the duties of moral judgment in basic political decisions, and the constitutional consensus that forms the Proposition and serves as the basis for rational argument and the compromises that it forges. This is the deep background that enables “the deliberate sense of the community” effectuated by our republican institutions to be reasonable.
To do so permits a process of compromise, animated by principles while also informed by property and interests, history and legends, under a distinctive bond of reason that can be seen in the arguments over the Declaration of Independence, the Constitution, the state constitutional ratification debates, and the debate in the First Congress over the content and wording of the Bill of Rights. These debates display the compromise and the synthesis of the American constitutional tradition, and these foundational debates help achieve the constitutional consensus that can then be further debated and developed. The question stalking our tradition now is the resolute or ideological manner in which central questions are answered and the institutional mechanisms chosen to implement them. Put differently, our politics is war-like, and the answers for difficult social and socioeconomic questions are seen as too significant to be settled by the deliberate sense of the community.