Newsflash from Schuette. We have yet another “dimension” of liberty. A liberty to be free of “governmental power.” And note–there is no reference to due process. This liberty comes from the Constitution itself!
The freedom secured by the Constitution consists, in one of its essential dimensions, of the right of the individual not to be injured by the unlawful exercise of governmental power. The mandate for segregated schools, Brown v. Board of Education, 347 U. S. 483 (1954); a wrongful invasion of the home, Silverman v. United States, 365 U. S. 505 (1961); or punishing a protester whose views offend others, Texas v. Johnson, 491 U. S. 397 (1989); and scores of other examples teach that individual liberty has constitutional protection, and that liberty’s full extent and meaning may remain yet to be discovered and affirmed.
And what an odd collection of cases. Brown, Silverman, and Texas v. Johnson. And what are these extents of liberty waiting to be discovered? Where are they?
Interestingly, this notion of liberty is consistent with my previous observations that Kennedy views federalism as a substantive guarantee of liberty. When states confer on gay people the right to same-sex marriage, that should inform the federal constitution. Like here, where states decide to strive for racial equality (defined as the absence of affirmative action), that should be protected. The goal is to “make freedom even greater and more secure.” This the one-way freedom ratchet that federalism promotes. You see that analysis, subtly here:
Yet freedom does not stop with individual rights.
Our constitutional system embraces, too, the right of citizens to debate so they can learn and decide and then, through the political process, act in concert to try to shape the course of their own times and the course of a nation that must strive always to make freedom ever greater and more secure.
The people, in the states, can vote for more freedom. And, this act of federalism promotes–wait for it–“dignity.”
Here Michigan voters acted in concert and statewide to seek consensus and adopt a policy on a diffi- cult subject against a historical background of race in America that has been a source of tragedy and persisting injustice. That history demands that we continue to learn, to listen, and to remain open to new approaches if we are to aspire always to a constitutional order in which all persons are treated with fairness and equal dignity.
I’ve written before that Kennedy views dignity as a type of liberty interest that can be conferred on people, in many respects, through the political process and federalism. And in such cases, Justice Kennedy will not allow the courts to intervene.
Here Michigan voters acted in concert and statewide to seek consensus and adopt a policy on a diffi- cult subject against a historical background of race in America that has been a source of tragedy and persisting injustice. That history demands that we continue to learn, to listen, and to remain open to new approaches if we are to aspire always to a constitutional order in which all persons are treated with fairness and equal dignity. Were the Court to rule that the question addressed by Michigan voters is too sensitive or complex to be within the grasp of the electorate; or that the policies at issue remain too delicate to be resolved save by university officials or facul- ties, acting at some remove from immediate public scru- tiny and control; or that these matters are so arcane that the electorate’s power must be limited because the people cannot prudently exercise that power even after a full debate, that holding would be an unprecedented re- striction on the exercise of a fundamental right held not just by one person but by all in common. It is the right to speak and debate and learn and then, as a matter of polit- ical will, to act through a lawful electoral process.
Let the people discuss and debate–so long as it promotes liberty–and the courts will stand on the sideline.
Voting to allow gay marriage, and voting to ban affirmative action, to Justice Kennedy, are both progressing along the same arc towards justice. This is substantive federalism.