The question of whether there is a federal constitutional right to same-sex marriage is essentially a debate about whether judges need to update the Constitution to keep step with changing times. Justice Anthony Kennedy appears to be the pivotal vote on the issue. One observer yesterday summarized what he takes to be the lesson of his previous opinions on rights: Kennedy “believes that each generation has the right to conceive of newer and broader forms of liberty that merit constitutional protection. He sees history as a guide but not a straitjacket.”
There is no doubt that each generation has the right to conceive of newer and broader forms of liberty. But it does not follow that federal judges should determine what those are. As Mike Rappaport and I have noted, the Constitution accommodates social change through features other than judicial updating. The most important such method is federalism. The states themselves have few restrictions on their powers. Their experiments to address social change can be readily adopted by other states in a continental republic with a free press.
Federalism in the modern era has been a great catalyst for freedoms.