Many things will be said in the coming days about the Supreme Court’s holding in Obergefell v. Hodges, better known as the same-sex marriage case. I don’t think I can in general improve upon the dissents written by the four Supreme Court justices—who object to the sweeping and poorly reasoned argument offered by Justice Anthony Kennedy as the “reasoned judgment” of a “bare majority” of his colleagues. But I think I have something to add to the discussion regarding Kennedy’s understanding of his role as a Supreme Court justice.
Much of American military and diplomatic history can be told in terms of military intervention and counter intervention, as well as debates about the justice and prudence of using force this way. One of the fundamental purposes of the American Declaration of Independence in 1776 was to persuade third parties, like France, Spain, and the Netherlands, to intervene in the conflict against Great Britain. Since France supplied upwards of 90% of the arms and ammunition the Americans used and provided not only a navy but also an army larger than the force of Continental soldiers George Washington brought to the…
Michael Greve’s April 2012 post “Constitutionalism, Hegel, and Us” had several significant points in his short essay masquerading as a blog post. Greve notes that liberal constitutionalism per Hegel’s argument in Philosophy of Right has a problem, a big one.
[P]olitical liberalism (Hobbes, Locke, Kant, and, with some qualifications, Rousseau) confuses civil society with the State. Again, that makes us nervous; but the distinction has a very large kernel of good sense. The principle of liberal constitutionalism, Hegel says, is “endless subjectivity,” or what we call “individualism.” A liberal constitution is a contract among individuals, who consent to limits on their autonomy insofar, and only insofar, as they are consistent with individualist principles. (Think Locke’s Second Treatise.) To state Hegel’s central objection at phenomenological level: you can’t run a free country on that basis.
So we need more than individuals. We need a society of persons constituted by familial, local, religious, and political attachments, recognizing that personhood contains aspirations and purposes that place it beyond the scope of state power. Society “possesses primacy over the state.” The state must serve the ends of the human person. On this basis we can relativize the state’s value.
Constitutionalism is in crisis—obviously in Europe, more arguably in America. High on the list of intellectual breakthroughs that might help us sort through our contemporary confusions is Georg Friedrich Wilhelm Hegel’s Philosophy of Right—to my mind, the best book ever written on the subject.
Argh! Barf! Say what?