My blog post, “Experimenting in Same-Sex Marriage and Other Matters,” raised questions about the relation between rights and consequences. Some commentators thought I was arguing that constitutional rights should be curbed if they had some bad consequences.
I think this was based on misunderstanding of my position. It true that I think the determining what rights to grant in writing a Constitution should depend on a consideration of the consequences. But in a world in which individuals have limited knowledge, rights against the government are very useful once we have determined that their exercise leads to enduringly greater costs than benefits.
The supermajoritarian constitution making process in our nation is the best way to make that determination, as Michael Rappaport and I argue in our forthcoming book Originalism and the Good Constitution . We need such processes, because the appropriate full set of rights is not self-defining a priori.
The premise of my discussion of same-sex marriage was that this right could not be located in the original meaning of the Constitution. (I did not defend this premise, because my post was about empiricism, not constitutional interpretation). Many people argue nevertheless that the Supreme Court should grant such rights through “an evolutionary process,” in the words of Ted Olson. I disagree, because federalism provides us a better way of testing the course of evolution by allowing us to consider the consequences of granting a new right.
Lest this seems excessively abstract, let me note that previously sexual freedom has received a substantial aid from the operation of our federalist system. Citizens who felt oppressed by local sexual regulations migrated to more tolerant jurisdictions like New York and San Francisco. There they have publicized their life style, and used the media to make case that previous sexual inhibitions can be relaxed without much social cost. I think the trend toward same sex marriage is benefiting from a similar process today in which same-sex married couples may demonstrate that it is a right that can bring happiness without causing substantial social harm.
The advantage of federalism is that it permits study of effects of new rights and gives the opportunity for second thoughts, if experiments go awry. As I said in my original post, I tend to favor same-sex marriage, but feel the force of the argument it represents a relatively untested change to a very venerable institution.
The larger point of Accelerating Democracy is that we have better tools today to look at the effects of social decisions, including granting new rights, because of exponential increases in computational power and big data. Federalism is a structure that makes better use of these tools than more centralized methods of social decision making, like judicial fabrication of constitutional rights at the national level.