Not the Framers' biggest fan.

Photographer: Sam Falk/New York Times Co./Getty Images

A `Living' Constitution and the Right to Marry

Cass R. Sunstein is a Bloomberg View columnist. He is the author of “The World According to Star Wars” and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”
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As recently as 20 years ago, it would have been pretty preposterous to argue that the U.S. Constitution requires states to recognize same-sex marriages. But there is a good chance that this summer, the Supreme Court will rule that it does.

To the many people who believe in judicial restraint, or in following the original understanding of the document, such a dramatic shift in the Constitution’s meaning is alarming, even illegitimate. Are they right?

A vivid answer can be found in an important but widely neglected speech from one of the greatest figures in the history of America law: Justice Thurgood Marshall. The speech is almost unimaginable today, certainly from a Supreme Court justice, and perhaps from a national leader of either political party. But it tells us a lot about the arc of history and the nature of constitutional law. (Disclosure: I was a clerk for Justice Marshall during the 1979 Supreme Court term.) 

The first African-American member of the Supreme Court, and an architect of the movement for equality under law, Marshall delivered the speech in 1987, on the occasion of the bicentennial of the U.S. Constitution. He objected that the national celebration was based on the false belief that our more perfect union had come from “the vision of those who debated and compromised in Philadelphia.” Against those who spoke reverently of the genius of the founding generation, Marshall responded that he did not “find the wisdom, foresight and sense of justice exhibited by the Framers particularly profound.”

He insisted that “the government they devised was defective from the start.” To create the modern Constitution, the U.S. needed not only amendments but also “momentous social transformation,” producing a system that is “vastly different from what the Framers barely began to construct two centuries ago.”

In the bicentennial year, Marshall proposed to celebrate not the Framers, but “those who refused to acquiesce in outdated notions” of liberty, justice and equality. In his view, “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 a life embodying much good fortune that was not.” He insisted that we see the Constitution as “a living document.”

When Marshall spoke these words, the Court had recently upheld a Texas law criminalizing sexual relations between people of the same sex -- in a case called Bowers v. Hardwick. In so doing, the Court noted that prohibitions on homosexual relations “have ancient roots.” It insisted that “the Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution.” In short, the Court was contending that social transformation should not come from judges but from a self-governing people, using the democratic process.

In general, that’s an excellent principle, and the Court should heed it. But on important occasions in American history, the changing views of a self-governing people have had a major impact on judicial understandings of the Constitution.

As a lawyer, Thurgood Marshall’s greatest achievement was to help orchestrate the legal strategy that ultimately led to Brown v. Board of Education, in which the Court struck down school segregation in the U.S. In recent decades, the Supreme Court has interpreted the founding document to erect a firm barrier to sex discrimination -- and hence to do just about everything that the failed Equal Rights Amendment would have done.

As a matter of principle, it has become increasingly clear that bans on same-sex marriage cannot be defended. As a matter of constitutional law, the issue is a lot harder; reasonable people disagree.

No one should be entirely comfortable with a situation in which the Supreme Court strikes down a practice that was widely viewed as unobjectionable just a few decades earlier. Judicial restraint has an important place. But in 2003, it was a great day, and a cause for national celebration, when the Court overruled Bowers v. Hardwick, concluding that states could not make same-sex relations a crime. If the Supreme Court forbids states from refusing to recognize same-sex marriages, we will have another cause for celebration in 2015.

Thurgood Marshall was right. The true miracle of the American Constitution is its life.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Cass R Sunstein at csunstein1@bloomberg.net

To contact the editor on this story:
Mary Duenwald at mduenwald@bloomberg.net