"It is not controversial to contend that in the United States, constitutional law serves as a decisive battleground in the struggle over freedom's moral and political meaning," asserts Peter Berkowitz. "It is another matter to assess the impact of the battleground on the battle, to clarify the current balance of power, and to anticipate the battles to come."
Berkowitz, a professor of law at George Mason University School of Law and a fellow at Stanford University's Hoover Institution, addresses the future of the U.S. Supreme Court and the concept of freedom in a fascinating essay published in the current issue of Policy Review. In "The Court, the Constitution, and the Culture of Freedom," Berkowitz argues that an expansive concept of human liberty lies behind the Supreme Court's tradition of jurisprudence. He goes on to argue that this progressive understanding of human freedom is likely to mean that the nation's high court will one day decide that access to same-sex marriage is nothing less than a right guaranteed under the U.S. Constitution.
Berkowitz begins by establishing that, "To say of some law or action or institution that it is constitutional is not to offer very high praise." After all, the constitution has been understood to guarantee an individual's right to various actions and expressions that the majority would find distasteful at the least. The U.S. Constitution is the nation's supreme law. "Because it is a liberal constitution, one whose first purpose is to protect personal freedom, the supreme law of the land avoids taking a stand on the supreme issues," Berkowitz explains. "It does not aim to instruct people on the virtues, or the content of happiness, or the path to salvation. That's not because it supposes that virtue is irrelevant, happiness has no content, or salvation is a delusion. Rather, the Constitution presupposes that the people, as individuals and through the various associations and groups they form, will pursue these goods. And it lays down a framework within which we, as a people, can maintain a society where each has the liberty to pursue, consistent with a like liberty for others, virtue, happiness, and salvation in the way each regards as fitting."
That said, the role of the U.S. Supreme Court in interpreting the Constitution represents an enormous power to reshape the entire culture. Berkowitz observes that the vast majority of formal written opinions handed down by the Court are of little interest to the big questions of life. Most deal with technical questions and matters of interest only to practicing lawyers and the parties directly related to the cases.
Nevertheless, many of the most divisive moral, political, and social questions of our times have been decided, at least with respect to the law, by the U.S. Supreme Court. The Court has exerted a vast influence over American life, and it threatens to expand this reach even farther.
Berkowitz understands that the textual issue at stake in the Court's most controversial decisions tends to be located in "the grandest clauses of the Fourteenth Amendment." These clauses include the due process clause which declares that no state "shall deprive any person of life, liberty, or property, without due process of law." Similarly, the equal protection clause declares that no state may "deny to any person within its jurisdiction the equal protection of the laws." The original purpose of the Fourteenth Amendment was to protect African Americans against denial of their rights by state governments. Nevertheless, the Supreme Court has expanded these clauses into an entire culture of freedom--and that culture of freedom has been radically expanded over the last several decades.
Setting aside that historical context, Berkowitz argues that "there are plausible arguments for deriving substance, or particular rights, from the due process and equal protection clauses." He acknowledges that the Supreme Court, at least at first, was reluctant to derive such rights from these clauses. He cites an 1872 case in which the Court declared that the expansion of rights through these clauses was forbidden. But, a little more than thirty years later, the Court changed its mind, setting a precedent for future courts to follow.
