(The Return of) Ignatz, by Sam Heldman

Wednesday, December 04, 2002

Constitutional Law

Nathan Newman's got a provocative post arguing that progressives -- and gay rights advocates in particular -- would be better off if the Supreme Court doesn't overturn Bowers v. Hardwick in a few months, because (in paraphrase, long story short) a constitutional-law victory in the Supreme Court merely encourages political mobilization by the opposition while detracting from the political mobilization of the supporters of the right in question. It's a tenable position, that others have taken before and I've said then that there's something to it; but in the end I think it's probably not right. Here's some reasons why.

First of all, I see the folks on the Right having no such troubles -- no boomerang effect, to speak of, from their adventures in pushing the envelope of developing new affirmative rights in constitutional law. Their "property rights movement", their "reverse discrimination/anti-affirmative action" claims, their McConnell-led "equal protection for the religious" strategy, their race-and-voting-rights theories, all have had some substantial success without any boomerang effect that I can discern. So if progressive court victories are sometimes followed by stronger regressive-politics, the fault lies in our political leaders and ourselves rather than in the courts or the litigators.

Second, there are plenty of counterexamples of progressive-led constitutional rights that have not generated backlash, at least not in proportion to the good the decisions have done. Some of the early race decisions of the 1940s and 50s are classic examples, but there are more. For instance, the decisions regarding First Amendment rights of public employees, to speak their minds (at least a little) without being fired. So the task -- beyond me, right now -- is to figure out how to make further victories fall into the "no backlash" category, politically.

Third, Nathan does not live in Alabama, or Texas, or similar states, I think. It will be a long long time before gay rights take hold, legislatively, in a place like Alabama. And telling a potential litigant there that he should forego filing a cert petition to establish a simple and basic right because it might, if successful, have an indirect negative impact on the ability of other folks in other states to get even further rights -- that's a hard sell to the guy in Alabama.

Still, there may, just maybe, be something to what Nathan's saying ...

posted by sam 7:44 AM 0 comments


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