SSM & S5MT -- two objections answered and six federalism scholars questioned

I’ve argued previously that one can reason back from Congress’s lack of power to enact legislation requiring states to provide marriage for same-sex couples to the conclusion that Section 1 of the Fourteenth Amendment does not require states to provide marriage for same-sex couples. The argument is straightforward in form. If Section 1 of the Fourteenth Amendment requires states to provide marriage for same-sex couples, then Section 5 provides Congress with power to enact legislation compelling states to satisfy that requirement. But because Congress lacks such power under Section 5, Section 1 must not impose such a requirement.

 

This is a Section 5 modus tollens argument: If P, then Q; not Q; therefore, not P.

 

This is not a typical form of argument about the meaning of the Fourteenth Amendment. The interdependence of Section 1 and Section 5 is widely recognized, but this modus tollens argument breaks into the circle in an unusual spot. It uses the lack of congressional power to argue for the absence of a constitutional right. The argument usually runs the other way; one takes the presence or absence of a Section 1 right as a premise and uses that to draw a conclusion about the presence or absence of derivative congressional power under Section 5.

 

Is the usual way the only permissible way? Is there something wrong, as a matter of constitutional law, with arguing from the absence of Section 5 power to the absence of Section 1 right?

 

Two potential objections to Section 5 modus tollens come to mind.

 

One is that congressional power under Section 5 to enforce a Section 1 right is contingent on prior judicial recognition of such a right. 

 

This judicial pre-recognition requirement would be odd as a matter of original meaning given the evident congress-empowering function of Section 5. It would also extend beyond the requirements of current doctrine as I understand them. True, Boerne v. Flores requires congruence and proportionality between Section 5 legislation and the requirements of Section 1 as previously set forth by the Supreme Court. And given Baker v. Nelson, federal legislation that required states to provide same-sex marriage might be doomed under Boerne if enacted today. But if the Supreme Court simply had not spoken one way or the other on a constitutional right to same-sex marriage, I’m not aware of a doctrinal requirement that Congress would have to wait for explicit judicial recognition of such a right under Section 1 before enacting legislation to enforce it under Section 5.  The understanding of Section 1 underlying such legislation would be subject to displacement by a contrary judicial understanding of the requirements of Section 1 (something like a hypothetical Baker v. Nelson II (2015)). But the risk of invalidation because Congress predicts incorrectly what the Court would hold should not deprive Congress of the ability to predict. After all, maybe Congress and the Court will agree. If Congress had statutorily required states to provide interracial marriage the year before Loving v. Virginia, for example, that legislation would have and should have been valid even though enacted before the Supreme Court had explicitly confirmed the unconstitutionality of state prohibitions of interracial marriage.

 

A second potential objection to Section 5 modus tollens is that the legal validity of the premise about lack of congressional power simply cannot be known with the requisite legal certainty given legal uncertainty about the existence of a Section 1 right from which the existence of such Section 5 power could be derived. As long as this uncertainty persists, the assertion that “there is no Section 1 right because there is no Section 5 power” can always be met with the counter-assertion that “there is Section 5 power because there is a Section 1 right.”

 

This objection seems mistaken. If Section 1 right and Section 5 power stand or fall together, there is no reason in principle to think that we cannot eliminate legal uncertainty about one through legal certainty about the other. For example, we can know that Congress lacks power to eliminate equal representation of the states in the Senate. From that, we can infer that Section 1 does not provide an individual right to equal personal representation in the United States Senate. And we can be confident about the absence of such a Section 1 right even though one can generate plausible arguments for the existence of such a right from existing constitutional doctrine. 

 

What, if anything, can we know about Section 5 power without knowing one way or the other whether a Section 1 right exists? One place to start may a brief filed by a group of federalism scholars in United States v. Windsor. This brief expressed agnosticism about the existence of a constitutional right to same-sex marriage under the Equal Protection Clause. (I assume the scholars were similarly agnostic about the existence of such a right under the Due Process Clause or the Privileges or Immunities Clause as well, but this is not stated explicitly in the brief.) And the focus of the brief is on Congress’s enumerated powers, by which the scholars meant enumerated in Article I. The statements in the brief should therefore not be taken as assertions about the scope of congressional power under Section 5 of the Fourteenth Amendment. But in considering some of these statements about the absence of congressional power to define marriage, a question for those scholars and their lawyers is: Why not extend these claims to Section 5 as well? 

 

 Here are some statements from their brief about congressional power to define marriage:

 

‘[U]nder the Constitution, the regulation and control of marital and family relationships are reserved to the States.’ Sherrer v. Sherrer, 334 U.S. 343, 354 (1948). … Our claim is not that family law is an exclusive field of state authority, but rather that certain powers within that field—such as the power to define the basic status relationships of parent, child, and spouse—are reserved to the States.
[3-4]

 

The legitimacy of same-sex marriage is a difficult and divisive issue, yet it is one that our federalism has been addressing with considerable success. Congress may regulate in this area to the extent necessary to further its enumerated powers. But it may not simply reject the States’ policy judgments as if it had the same authority to make domestic-relations law as they do.
[5]

 

[T]he federal government lacks constitutional authority to determine marital status in a blanket way.

[7]

 

In divisive social controversies like the debate over same-sex marriage, federalism lets each State and its citizens decide how to proceed, largely free of national pressure.
[9]

 

State-by-state policy diversity also facilitates experimentation, which can help resolve divisive questions reflecting deep-seated individual views about rights.
[10]

 

Only states can confer and define marital status under their police powers.
[26]

 

This Court has frequently, and recently, echoed that determining family status remains a State power.
[27]

 

DOMA … interferes with the States’ exercise of their reserved power to define marriage for their own purposes.
[31]

 

These statements support the claim that Congress lacks authority to require States to adopt a particular definition of marriage, such as one that recognizes same-sex unions as marriages. To be clear, though, the brief cautions: “Any State’s choice remains subject, of course, to the Fourteenth Amendment’s constraints, and we do not argue that state sovereignty provides any reason to narrowly construe the Equal Protection Clause. But unless equal protection requires recognition of same-sex marriage, the Constitution best protects liberty of same-sex marriage’s proponents and opponents by guaranteeing each State the right to decide for itself.” Given this reservation, it would not be inconsistent for one of these scholars to affirm Section 5 power for Congress to require states to provide marriage to same-sex couples. But why not interpret the Equal Protection Clause in light of the Constitution’s reservation of authority to the states to define marriage?