Disturbing Parallels between Lincoln and Kennedy:

I was providentially privileged to see Spielberg’s “Lincoln” just a couple of days before the Supreme Court declared DOMA. Keeping in mind Mr. Douthat’s wise words about the misleading impressions one may form from such a necessarily partial and de-contextualized presentation and also the objections by historians that some of the key suppositions of the picture are historically false, still it is quite striking how up front and overt “Lincoln” was to his cabinet about his subversion of Constitutional process and his lies to congress. While we agree about the importance human rights and approve of the 13th Amendment, Lincoln’s approach presumes absolute confidence in his own moral judgment, zero confidence in constitutional law and the democratic process, and a willingness to do whatever it takes to get his desired result by any means necessary however moral or even however utilitarianist. Now we may reasonably agree that a person may find themselves to be justifiably in that sort of position. But certainly the prior probability against that being the case should make us marvel, particularly because we can easily imagine anyone putting such a spin on events to rationalize any oppressive measure. It also disturbs in that one could easily imagine the dizzying self-aggrandizing and narcissistic effect of having such a concept of oneself would provide an overpowering motive for artificially and unnecessarily creating such a scenario.

Apparently, Justice Kennedy found himself in a similar situation as his statement for the majority in ruling against the constitutionality of DOMA. This is apparent from the globalizing and simplistic categories he used. More specifically, it seems to be indicated by his disproportionate emphasis on states rights. It was disproportionate as Justice Scalia points out in his read statement for the dissenting minority because most of Kennedy’s argument focuses on a crypto-appeal to constitutional due process with respect to states but then this gets rejected at the end since lack of precedent for same sex marriage in American tradition and history would permit different treatment of it by the federal government according to constitutional due process.

To further his case, then, Kennedy had to attribute to the states the power to impose a sacred dignity where none had been recognized before. This raises the question whether the purpose of law is to recognize or impose duties. It is usually supposed that it does both differentially, recognizing dignities to secure them and imposing certain stipulations in order to facilitate the former. But on Kennedy’s view of state creation of value of gay marriage, it can only be by stipulation and imposition and not by recognition. If impositions could create dignities, then everything could be a dignity and thus nothing would be. But if the states (as in some but not others) are recognizing a dignity, it must by the presumed dignity of doing whatever you want to do – which would include selling yourself into slavery if you wanted and thus proves to be incoherent.

To avoid these extremes, then it must involve nuanced and qualified dignities and thus is not within the provenience of the judicial branch but rather the legislature. But it’s here where we see zero confidence in the institutions of democracy and instead the imposition of a sovereign Justice to take matters into his own hands. This is especially clear in the rejection of a law passed by constitutional provisions. Neither due process nor federalism provides a basis for it.

So Kennedy shows a strong parallel to Spielberg’s Lincoln – not surprising since the film production has sent clear signals that it still regards sections if the country as not entitled to appreciate the person represented in the film, and thus displaying it’s political preferences overtly.

The real crux is that rather than being seen as an extraordinary political case, it is being seen as the very paradigm if normal politics. The logical conclusion of this is in the reduction to meaninglessness of our democratic institutions and their use as a foil for a political Caesarian elitism that alone holds the right to determine what is and isn’t right for the masses. After all such a public has demonstrated it’s unfitness to rule by refusing to grow up to maturity and instead entertaining their infantile selves with such things as “Star Wars”, “Lord of the Rings”, and “ET”. (Oops!)

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