We Must Be the Change We Wish to See in Our Constitution

September 18, 2015
Guest Post

by Steve Sanders, who teaches and writes about constitutional law, constitutional litigation, and family law at the Indiana University Maurer School of Law, Bloomington.

*This post is part of ACSblog’s 2015 Constitution Day Symposium.

Advocates for civil rights and civil liberties often look to our Constitution in their quest for legal and social change.  But the processes of legal and social change also shape the contours, sometimes the very meaning, of constitutional guarantees.  Last summer in Obergefell v. Hodges, the Supreme Court applied the Fourteenth Amendment to transform the nationwide legal status of same-sex marriage.  But it is important to appreciate how same-sex marriage had already changed the Constitution.  

On matters of individual liberty and equality, the Constitution is not a catalog of enumerated, narrow, and static rights, though most legal conservatives insist that we treat it that way.  Rather, it provides a set of bedrock values, values whose meanings grow and adapt alongside the growth of knowledge and human understanding. 

As Chief Justice John Marshall wrote in McCulloch v. Maryland, a constitution is “intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs.”  Justice William Brennan, one of the greatest champions of a progressive Constitution, observed,  “Our amended Constitution is the lodestar for our aspirations.  Like every text worth reading, it is not crystalline. The phrasing is broad and the limitations of its provisions are not clearly marked.  Its majestic generalities and ennobling pronouncements are both luminous and obscure.”

And as Justice Anthony Kennedy wrote in a decision invalidating laws that criminalized same-sex sex acts, “Had those who drew and ratified the [Constitution] known the components of liberty in its manifold possibilities, they might have been more specific.  They did not presume to have this insight….  As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”

In that 2003 decision, Lawrence v. Texas, the Court considered the last half-century of legal and social change, both in the United States and in other democracies, and found an “emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.”

That awareness did not spring from lifeless constitutional theory.  It was the product of, among other things, dramatically changing public attitudes, as well as the justices’ exposure to, and appreciate for, the realities of human life and relationships.  It was also the product of social science, historical scholarship, and other expert knowledge that attorneys had placed before the Court. 

A generation earlier, in 1971, the Supreme Court had declined to even receive briefing and argument in a same-sex marriage appeal from Minnesota.  The very idea of same-sex marriage seemed outlandish.  Neither society nor the Court were ready for it.

It did not become plausible to present arguments to courts about same-sex marriage until many more gays and lesbians had come out and begun living their lives openly.  Indeed, I believe the coming-out movement has been the single most powerful force in moving the public, lawmakers, and the courts toward the full social and legal acceptance of gays and lesbians.  As the Iowa Supreme Court recognized in its wise and eloquent 2009 decision legalizing same-sex marriage in that bellwether state:

Plaintiffs are in committed and loving relationships, many raising families, just like heterosexual couples….  Society benefits … from providing same-sex couples a stable framework within which to raise their children and the power to make health care and end-of-life decisions for loved ones, just as it does when that framework is provided for opposite-sex couples.  

Yale law professor Reva Siegel has written that the early state-by-state marriage cases – Iowa, Massachusetts, California, Connecticut – “changed the national conversation by the simple act of authorizing same-sex couples to marry – diffusing dread and stereotype for some, and for others, inspiring empathy and emulation.”  These cases “injected constitutional questions into democratic deliberation, making minority voices audible and informing political conflicts with constitutional values.”  

When same-sex marriage returned to the U.S. Supreme Court in 2013 in United States v. Windsor, the challenge to the federal Defense of Marriage Act, the Court opened its opinion with a remarkable overture about America’s journey toward acceptance of equality:

Until recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage.  For marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization. That belief, for many who long have held it, became even more urgent, more cherished when challenged.  For others, however, came the beginnings of a new perspective, a new insight.  The limitation of lawful marriage to heterosexual couples, which for centuries had been deemed both necessary and fundamental, came to be seen as an unjust exclusion.

Windsor went on to characterize marriage as a dynamic institution, one that demonstrates how law has been capable of discarding the narrow understandings of the past and adapting to new human realities.  The growing acceptance of same-sex marriage, the Court said, demonstrated the “evolving understanding of the meaning of equality.”

If the meaning of equality was evolving, it follows that the Constitution also was evolving.  As the mainstreaming of gay and lesbian persons and same-sex relationships forced us to rethink our assumptions about marriage and family, it also shaped the meaning of the Fourteenth Amendment. 

In Obergefell, the Court forthrightly acknowledged the interplay between constitutional law and broader forces of social discourse and experience.  The Court attached significance to the fact that same-sex marriage had already been long and widely deliberated not only in dozens of lower-court cases, but in voter referenda, legislative chambers, universities, churches, labor union halls, and countless studies and writings.  All this had led “to an enhanced understanding of the issue – an understanding reflected in the arguments now presented for resolution as a matter of constitutional law.”

This, then, is how we know we really do have a “living constitution.”  Like other living things, our Constitution evolves not merely through the operation of the DNA at its core – namely, those fundamental values of liberty and equality – but also in response to external forces that act upon it, causing it to adapt and grow in new directions. 

Yet to say the Constitution lives and evolves is not necessarily a guarantee that it will do so in a way that is consistent with any particular social vision or set of normative commitments.  That is why the work of the lawyers, students, professors, commentators, and public officials affiliated with the American Constitution Society is so essential.  ACS was one of many groups that shaped public and constitutional discourse in a way that ultimately made marriage equality possible.

A quote attributed to Mahatma Ghandi says, “You must be the change you wish to see in the world.”  I would suggest that, in like manner, we must be the change we wish to see in our Constitution.