The Jurisprudence of Denigration

Abstract

In his opinion for the Court in United States v. Windsor, Justice Anthony Kennedy asserted that section 3 of the Defense of Marriage Act was unconstitutional because it was enacted from “a bare congressional desire to harm a politically unpopular group,” or from a “purpose...to demean,” “to injure,” and “to disparage.” Kennedy and the Court thereby in essence accused Congress – and, by implication, millions of Americans – of acting from pure malevolence.

Why might distinguished Justices put their names to such an extraordinary accusation? This article explores deficiencies, first, in contemporary constitutional discourse and, second, in contemporary moral discourse. These deficiencies have resulted in a situation in which, in some contexts, the only kind of admissible and potentially persuasive argument is one that attacks the character or motives of one’s opponents. Windsor is a recent and egregious instance of this discursive pattern, or of what we may call the discourse of denigration.

Keywords: constitutional law, marriage, law and philosophy, public discourse

JEL Classification: K10