This is the first in a series of posts intended to expose the snobbery that is often entailed by claims of the “progress” of culture. I hope to attack various manifestations of the view that currently popular moral, social, and philosophical views may safely be regarded as superior to those that were popular in past ages. Subsequent posts will deal with issues such as the alleged progress of our moral ideology, our philosophical understanding of the nature of things, and our ability as a culture of foster human thriving. But here I will attack chronological snobbery as it is found in the Supreme Court’s jurisprudence.

As a preliminary note, I grant that not all claims of “progress” are unfounded. Slavery has been abolished. Women have the right to vote. Racial justice seems to be making slow progress. I agree with most of my contemporaries that these developments really are good. What I object to is not this sort of discreet claim about a particular instance of progress, but the sweeping claims that generalize from these discrete instances, projecting an uninterrupted and (from its own perspective) unproblematic story of Progress. And why do I object to such claims? Because they color our narratives of the past in a way that is harmful in the present. They inhibit our sense of fellowship with our cultural predecessors and they prevent us from learning certain lessons they have to teach us.

Now, having gotten through these initial comments, we may return to the Supreme Court.

One aspect of the debate between the majority and the dissents in Obergefell,[1] the 2015 gay marriage decision, is the conflict between two differing visions of history and (relatedly) two differing visions of the Constitution.  Justice Kennedy’s majority opinion sets forth a view of history that might aptly be called progressive—both in the sense that it is characteristically held by those on the political left and in the sense (my primary sense for current purposes) that it considers the United States’ history as one of moral progress:

The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.[2]

Though Kennedy does not explicitly claim that we as a people are morally superior today to what we were in the past, it is not difficult to see how this view is at least strongly suggested, if not implied, by the passage. According to Kennedy, the founding generation was incapable of seeing certain injustices—and so, recognizing that they saw “through a glass darkly,” the founders entrusted to subsequent ages the protection of liberty as those ages “learn its meaning,” implying, of course, that the meaning of justice would grow clearer as history progressed. And so, according to him, it has: “new insight” into the meaning of liberty enables us today to see what was opaque to the founders and to a majority of all subsequent generations—namely, the “injustice” of depriving gay couples of the right to marry. It therefore becomes the role of the Supreme Court, responsive to the moral insight of the current generation (and especially, note, that of the rising generation),[3] to adjust the boundaries of constitutionally protected liberty to reflect that insight.

A contrary view of history is embodied in Chief Justice Roberts’ scathing response, in which Justices Scalia and Thomas joined:

[A] State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational.

. . . .

The right [that the majority’s decision] announces has no basis in the Constitution or this Court’s precedent. The majority expressly disclaims judicial “caution” and omits even a pretense of humility, openly relying on its desire to remake society according to its own “new insight” into the “nature of injustice.” As a result, the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?[4]

The historical outlook of this passage self-consciously contrasts with that of Kennedy’s opinion, and assumes that the unanimous endorsement of past cultures, including past American culture, entitles any given policy to a strong presumption of reasonableness (such a policy “can hardly be called irrational”)—and therefore, absent pre-existing positive law to the contrary, such policies should not be changed through adjusting constitutional doctrine. Impliedly, Roberts is skeptical of the Court’s ability to discover the true (but hitherto hidden) meaning of justice and liberty in regards to gay couples. Instead, if change is to be enacted, as Roberts allows may possibly be advisable, it must come through the political process.

Thus, Kennedy assumes that our moral insight is superior to that of past generations of Americans, while Roberts is skeptical that this is so. But even without these Justices’ dueling visions of history, it should be obvious that one of the main issues underlying the marriage debate (the main issue?) is whether the history of our nation with respect to marriage, morals, and sexual autonomy, is one of progress, such that the next step in the path we are on may safely be judged a good step.

As should be obvious, I agree with the Chief Justice completely, and like him I find Justice Kennedy’s chronological snobbery and judicial activism deeply disturbing. I do not regard our history as one of unambiguous progress with respect to these issues—if anything, I think the general trend has been regressive.

Note, though, that Roberts does not posit that past policies were necessarily correct and should be conserved, but only that past peoples were not irrational and (impliedly) that the present generation has no privileged access to the meaning of justice. His philosophy on this issue is not so much “conservative” as “non-progressive.”

I am adamant that the non-progressive view of history is superior to the progressive view. “Non-progressive” as I use it should not be understood to indicate the positive view that our society has not progressed, but only the acceptance of two much more modest claims. The first, a factual claim, is that history has not been a straightforward story of moral progress. Instead, for any given space of time, there is a real possibility of moral regression both overall and in particular limited spheres of human activity, and history has at least sometimes realized these regressive possibilities.

The second claim of the non-progressive view is more theoretical: namely, that it is not a simple matter to pronounce what constitutes progress in an absolute sense. The difficulty is at least two-fold. First, there is the fact that, almost invariably, the passage of time and the shifting of social values and institutions will bring about progress in one sphere and regression in another; and how is one to weigh the respective changes against each other? Second, any judgment comparing the morality of one age against the morality of another necessarily employs some value system by which the respective ages may be judged. But each age has its own characteristic value system, and part of what is at issue in the comparison is which value system is superior. There is a great danger, therefore, of begging the question. Given the real possibility of regression and the difficulty and danger of judging competing value systems, it follows that we may not blithely assert that the passage of American history has corresponded with our moral progress.

As I conceded at the outset, relative to the state of things in the early 20^th century and before, women and minorities have more social capital and a more even playing field in political, economic, and ideological realms (though perhaps still far from even). Admittedly, earlier generations were unjust in various ways that we now see clearly. But is it not possible that they also saw other things more clearly than we do? Might it not be hasty to dismiss all currently unpopular judgments of past generations merely because we find among them some that are clearly mistaken? Yet proponents of the progressive view of history often argue (though usually only implicitly) that the moral judgment of people and institutions so tainted are not worthy of the deference we rightly give to contemporary moral consensus.

Consider, for example, the Yahoo! Answers responses to the question, “How do the patriots of the revolutionary war compare to the patriots of today?” Obviously, one does not expect rigor in such a forum; but one might look for a good indication of popular sentiment, especially where the responses agree. There are two substantive answers to the question. The first: “2 things : slavery & technology[.]” The second: “they thought slavery was ok back then. need i go on?”[5] Note the irrelevance of the answers. The question regarded patriotism. The answers were utterly unresponsive to the question except by an implicit premise: the putative virtues (such as patriotism) of anyone who accepted slavery must be beneath our notice. This premise is, pretty clearly, incorrect. Yet various forms of this very argument underlie the ubiquitous chronological snobbery of our day. Anyone who accepted [racism, segregation, certain ideologies of gender, a limited franchise, etc.] is, by virtue of that, suspect: we hesitate to give them any credence, or at least any deference, in regards to moral questions.

Perfectly instantiating a more intelligent form of this argument is Justice Thurgood Marshall’s “Bicentennial Speech,” in which he declines to join in the “proud proclamations of the wisdom, foresight, and sense of justice shared by the Framers” because

I [do not] find the wisdom, foresight, and sense of justice exhibited by the Framers particularly profound. To the contrary, the government they devised was defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, we hold as fundamental today.

Mainly, it seems, because of the racial injustice of prior eras in American history, Marshall proffers the astonishing claim that the “wisdom, foresight, and sense of justice exhibited by the Framers” was not “particularly profound.” Therefore, he concludes, “the true miracle was not the birth of the Constitution, but its life, a life nurtured through two turbulent centuries of our own making”; and so he proposes to celebrate “the bicentennial of the Constitution as a living document,” meaning a Constitution whose meaning is being judicially updated to reflect society’s increasingly just moral consciousness.  As a self-consciously activist judge, Marshall’s speech is partly a defense of his jurisprudence. (He once described his judicial philosophy as, “You do what you think is right and let the law catch up.”)

As a counterpoint to Justice Marshall’s account of the living Constitution, allow me now to quote from the late Justice Scalia, who believes in the “dead, dead, dead” Constitution. Whatever you think of Scalia’s other opinions, consider this one carefully. Recently dead people, as much as long-dead people, ought to be accorded a thoughtful hearing on each new issue, even if we may entertain a settled antipathy towards certain aspects of their thought. This passage is from his dissent in a case wherein the majority struck down the Virginia Military Institute’s male-only admission policy on equal protection grounds:

Much of the Court’s opinion is devoted to deprecating the closed-mindedness of our forebears with regard to women’s education, and even with regard to the treatment of women in areas that have nothing to do with education. Closed minded they were—as every age is, including our own, with regard to matters it cannot guess, because it simply does not consider them debatable. The virtue of a democratic system with a First Amendment is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly. That system is destroyed if the smug assurances of each age are removed from the democratic process and written into the Constitution. So to counterbalance the Court’s criticism of our ancestors, let me say a word in their praise: They left us free to change. The same cannot be said of this most illiberal Court, which has embarked on a course of inscribing one after another of the current preferences of the society (and in some cases only the counter majoritarian preferences of the society’s law-trained elite) into our Basic Law. Today it enshrines the notion that no substantial educational value is to be served by an all-men’s military academy—so that the decision by the people of Virginia to maintain such an institution denies equal protection to women who cannot attend that institution but can attend others. Since it is entirely clear that the Constitution of the United States—the old one—takes no sides in this educational debate, I dissent.[6]

Scalia is clearly, like me, “agnostic”[7] with regard to the absolute moral progress or regression of our society. “Every age,” he chides, has its areas of “closed minded[ness].” Each age must be free to update its laws, and should do so through the political process, not through judicial re-writing of the constitution. It is the People and their legislators who are the ordained source of law under our Constitution; judges get to say what it is, not remake it according to their views.

If the agnostic (non-progressive) view of the absolute moral progress of history be admitted as at least arguable, one might well proceed to ask whether there are any practical jurisprudential advantages to adopting it. There are. Scalia has already indicated one of them: if we refrain from inscribing contemporary values into the basic law, we leave the current and future generations free to make changes through the normal political process. There are at least two others that I can think of. There is the advantage of being more open to the correction of the past. C. S. Lewis might make this point better than anyone else in his argument about why contemporary people ought to read “old books.” I love this passage dearly and have quoted it in a pervious post, and I quote it here again.

Every age . . . is specially good at seeing certain truths and specially liable to make certain mistakes. We all, therefore, need the books that will correct the characteristic mistakes of our own period. And that means the old books. . . . None of us can fully escape [the characteristic blindness of the twentieth century], but we shall certainly increase it, and weaken our guard against it, if we read only modern books. . . . The only palliative is to keep the clean sea breeze of the centuries blowing through our minds . . . . Not, of course, that there is any magic about the past. People were no cleverer then than they are now; they made as many mistakes as we. But not the same mistakes. . . . Two heads are better than one, not because either is infallible, but because they are unlikely to go wrong in the same direction.[8]

In other words, we are not in danger of the characteristic blindnesses of the past; we are in danger of the characteristic blindnesses of our own age. By reading old books sympathetically (or, more generally, by eschewing chronological snobbery) we open ourselves to the wisdom of the past without opening ourselves to its foolishness.

Lewis’s characteristic good sense, translated into the jurisprudential sphere, probably means a greater respect for past precedent, especially very old precedent, especially when the arguments for rejecting the precedent are fundamentally ideological or value-based, rather than factual or legal, and especially when the source of the law to be updated is the Constitution (i.e., directly from the People).

A final practical jurisprudential advantage of the non-progressive view is that it furthers the pragmatic Burkean values of deliberation and carefulness in social transformation. It makes the judiciary the brakes rather than the engine for social change of constitutional dimensions: the judiciary remains true to the legal tradition and the People are enabled to change it (and gain valuable political exercise in the process) through either the normal or the constitutional political process, with all their arguably salutary difficulties. Minorities retain the existing protections of the Constitution against the tyranny of the majority—but they do not obtain previously undreamed of protections at every step. Here again, Lewis’s argument for the utility of “old books” (and old precedents) seems relevant: the democratic process may safely be entrusted to update what is foolish in the old regimes, but may not necessarily be entrusted to preserve what is wise. To some degree, therefore, and as a procedural matter, judges ought to be partisans of the old, whatever their personal views, as a means of preserving what may be good and wise against erosion by the ideological winds of the day.

Now allow me to concede that, in a special historical moment, it may sometimes be permissible for a court to reinterpret the constitution in a manner flatly contrary to all previous precedent and history. The Supreme Court was probably correct to overturn Lochner[9] in 1937, stop blocking New Deal legislation, and embrace a more comprehensive role for the federal government in economic regulation than was envisioned, or would have been permitted, by the Founders. But until the consensus of the People is clear (as it was before the 1937 “switch in time”), and until the political will of the People is actively thwarted by the old constitutional regime (as was also the case at that time), such a moment has not arrived.[10] Even if both of these conditions are met, the Court should still hold firm if the text of the constitution plainly does not permit the desired change: in this case, a constitutional amendment would be the only permissible means to the desired end. If the consensus of the People is not yet clear, the courts should, to the degree possible, avoid taking sides in the ideological battles. And if the political will of the People is not actively thwarted by the old constitutional regime, then the political process remains open to the People. The conditions for appropriate judicial revision of the constitutional scheme were met in 1937. In my view, they have not been met since then.

If I may be permitted, at once, the two liberties of time travel and elevation to the Supreme Court, I will conclude by joining Justice Scalia’s dissent in United States v. Virginia and Justice Roberts’ dissent in Obergefell. “The smug assurances” of our age have blinded us to certain truths that were known to our ancestors, even as we have discovered some truths of which they were blind. We have allowed the “institution that has formed the basis of human society for millennia” to be remade in our own individualistic image, and for this we pat ourselves on the back. Now, I will concede (for current purposes only) that gay marriage may have been advisable, in which case we might well pat ourselves on the back. What cannot have been advisable is our unconsidered disrespect for the supposedly inferior moral values of our cultural ancestors. “Just who do we think we are?”

[1] Obergefell v. Hodges, 135 S. Ct. 2584 (2015).

[2] Id. at 2598.

[3] Cathrine Cloutier, Most young Americans overwhelmingly support gay marriage, Boston Globe (June 26, 2015), https://www.bostonglobe.com/news/nation/2015/06/26/almost-millennials-support-same-sex-marriage/upgBZbZ9IvJXY0ZMOElgtN/story.html (noting that with the passing of time, each generation has become increasingly friendly to gay marriage, so that while a slight majority of the nation supports it, a supermajority of the young support it—roughly three in four millennials).

[4] Obergefell v. Hodges, 135 S. Ct. 2584, 2611-12 (2015).

[5] These are unusually bald forms of the argument, but scholars often make more limited claims that nonetheless depend on the same sort of popular moral sensibility of the progress of equality. Anyone who posits the superiority of some foregone period in any given respect (say, the professionalism of lawyers) is likely to be called “nostalgic,” and then to hear something like this: “After all, the good-old days were never all that good for many lawyers who did not fit within well-off white male circles . . . .” Deborah L. Rhode, Opening Remarks: Professionalism, 52 S.C. L. Rev. 458, 459 (2001).

[6] United States v. Virginia, 518 U.S. 515, 566-67 (1996).

[7] Lawrence Lessig, Fidelity and Constraint, 65 Fordham L. Rev. 1365, 1417 (1997).

[8] C. S. Lewis, On the Reading of Old Books, in God in the Dock 200, 202 (1970).

[9] Lochner v. New York, 198 U.S. 45 (1905).

[10] Cf. 1 Bruce Ackerman, We The People 47-50, 101-30 (1991).