What Will They Be Thinking?

Jack Balkin has an interesting post on Balkinization, discussing what he calls “arguments from the future” in constitutional law―arguments to the effect that a constitutional issue has to be resolved a certain way because of what people will think about it at some point in the future, say in 20 years. “If,” he writes,

like Martin Luther King, you believe that the arc of the moral universe is long, but that it bends toward justice, you will want to be sure that you do justice today, so that people tomorrow will see that you were on the right side when the chips were down.

The immediate context for this discussion is the U.S. Supreme Court’s upcoming consideration of same-sex marriage which, though still controversial now in the U.S., is clearly gaining in acceptance, especially among younger people. It seems a reasonable bet, then, to suppose that, 20 years from now, a decision saying that marriage equality is not constitutionally protected will look retrograde, bigoted, or worse. That’s how the U.S. Supreme Court’s 1986 decision upholding the constitutionality of sodomy laws, Bowers v. Hardwick, 478 U.S. 186, looks today, or how its decision upholding the constitutionality of “separate but equal” segregation, Plessy v. Ferguson, 163 U.S. 537 (1896), eventually came to look, though as prof. Balkin notes, it actually anticipated the feelings of the succeeding generation, and became odious much later on. Nobody wants to go down in history as a bigot. And especially, as prof. Balkin points out, when one has one’s job for life, with no employers or voters to please, the way one will be remembered is a powerful motivation.

But, prof. Balkin observes, arguments from the future can be marshalled in support of different positions:

If we believe in a narrative of inevitable progress, then an argument from the future is an argument for working toward whatever we think “progress” is, and not being left behind. On the other hand, if we believe that America is in decline, then an argument from the future is an argument for holding fast to values that future generations will thank us for defending.

And, whatever direction one thinks things are headed now, one must also recognize that this direction might not be set in stone forever: in a century, “[p]erhaps people … will realize that today’s ‘progressive’ causes were all a big mistake.” His conclusion is that

the point about all arguments from the future is that they are arguments that imagine the future, rather than describe what it will actually be. We never fully know what the future will be like, and it is rarely exactly what we imagine in the present.  Arguments from the future are fallible, because we ourselves are fallible.

I think that’s right, and I would like to add to this skepticism.

One question is simply empirical: do courts actually use arguments from the future to justify their decisions? Do lawyers openly invoke them? Of course, prof. Balkin is surely right that reputation with future generation weighs, and probably heavily, on many judges’ minds. Still, is it any different from other “personal” influences (such as one’s political or religious views) that good judges, at least for the most part, set aside when deciding cases? Such things, no doubt, influence a judge’s intuitions about a case, but then he or she must write an opinion justifying the decision. If the opinion “won’t write”―if the decision cannot be supported by arguments that don’t rely on personal preferences―then a decent judge will revise his or her initial intuition. So if arguments from the future do not feature in judicial opinions, there is at least some reason to think that they are not as important as those that do.

Then, there is the question of competence, which prof. Balkin discusses: can courts figure out what the future will be like with any degree of confidence? The answer to that is that they surely cannot. As prof. Balkin notes, the gift of prophecy is just not really a part of human nature. Not only do we not know whether the future holds progress or decline, we do not even know what is one and what the other. When Justice Holmes and his colleagues were deciding Buck v. Bell, 274 U.S. 200 (1927), the infamous case that upheld the constitutionality of the forced sterilization of an allegedly “feeble-minded” woman because “three generations of imbeciles are enough,” eugenics probably seemed like a very progressive idea. 20 years later, it was odious. And courts are in an especially bad position to play prophets, since they are likely to lack, or to have a very incomplete picture of, the information needed to make even educated guesses about the future.

Finally, there is the question of legitimacy. Even if courts could predict the future, and even setting aside the question of “what future”―a year hence, a generation, a century?―how is it legitimate for the views of future generations to dictate what the meaning of a constitution is? Of course the alternatives―that constitutional meaning is to be discovered in the past or in the present―are also vulnerable to criticism. But one can give at least prima facie plausible justifications for them. The views of the people who ratified the constitution count because of the democratic process they went through (and through which we could go again if we don’t like what they left us). The views of the present generation count because, after all, that’s whose decisions the constitution governs and whose rights it defines. But what about the views of people who are yet to be born? It might make sense to say that the constitution means what it has always meant, or that it means what it means; but to say that it now means what it will mean in 25 years seems to me rather paradoxical.

It is difficult and morally questionable enough for courts to try to figure out what the constitution meant or means now. There’s little point in bothering to guess what it will some day come to mean, just as there is little point in bothering to judge past generations from what we think is the height of our moral progress. If people in the future want to waste time on judging us, let them. We have enough difficult questions to answer for the present.

Author: Leonid Sirota

Law nerd. I teach public law at the University of Reading, in the United Kingdom. I studied law at McGill, clerked at the Federal Court of Canada, and did graduate work at the NYU School of Law. I then taught in New Zealand before taking up my current position at Reading.

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