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Attacking the Constitution from Both Sides

March 12, 2012

J. Harvie Wilkinson III, federal appeals judge and former chief judge of the federal court of appeals in Richmond, believes that the United States Constitution is under attack from both right and left, and that both attacks are “equally damaging” to the country.

Judge Wilkinson is a life-long conservative, from his college days to his appointment to the Reagan Justice Department, to his appointment by President Reagan to the federal bench.

Judge Wilkinson starts by castigating the conservative attack on the Affordable Health Care Act as an appropriate “political” argument, but an inappropriate “constitutional” argument.  But Judge Wilkinson does not stop at Obamacare.  He rejects conservatives’ underlying hostility to federal power to regulate the economy:

“In curbing federal excess, courts risk lessening our national economic strength. That strength resides partly in the national aspects of our founding document, among them the now maligned commerce clause and the newly mistrusted supremacy clause, which gives preference to federal over state law when there is a conflict. . . .

“It is tempting to shout states’ rights when deeply flawed federal legislation is enacted, but the momentary satisfactions of that exercise carry long-term constitutional costs. . . .  [I]f courts read the Constitution in such a way that it enables them to make Congress ineffectual, and instead to promote 50 state regulatory regimes in an era of rapidly mounting global challenges, the risks should escape no one. Making our charter more parochial while other nations flex their economic muscle seems like poor timing.”

Judge Wilkerson is making two points.  The first is that national standards in place of state-by-state variations may be essential to American global competitiveness.  And second, Congress is in the best position to know when national standards are needed and what they should be – better than the courts, and better than the states.  These are succinct and potent refutations of political conservatism, from a judicial conservative.

Judge Wilkerson next trains his sights on liberals:

“Just like the opponents of the Affordable Care Act, the proponents of reproductive choice and same-sex marriage have strong arguments — but they are political, not constitutional. . . . .  [C]reating constitutional rights without foundation frays the community fabric and, with it, the very notion that the majority can enact into law some expression of shared values that make ours a society whose whole is more than the sum of its parts. In pushing a constitutional vision of autonomous individuals divested of location in larger social settings, liberals risk weakening the communal values and institutions that best afford our most disadvantaged the chance for a good life.”

Judge Wilkerson’s equivalence between the constitutional arguments of the left and right is a false equivalence.

First, his assertion that liberals have pushed for recognition of rights not found in the “textual and historical foundations” of the Constitution and the Bill of Rights is not entirely correct.  For instance, the constitutional argument for marriage equality rests squarely on the text of the fifth and fourteenth amendments to the Constitution:  both guarantee citizens the “equal protection of the laws.”

It is unquestionably true that the authors of that phrase would have been shocked to learn that they were laying the foundation for same-sex marriage.  But I would suggest that those authors would also have been shocked to learn that they were laying the foundation for racial and sexual equality.  “Equal protection” prohibits different treatment of similarly situated people, and our understanding of what it means to be “similarly situated” naturally and inevitably evolves.

Second, I see no equivalence between conservative hostility to Congressional regulation of the economy and liberal eagerness for judicial expansion of individual rights.  There is surely a constitutionally significant difference between judicial protection of minority groups and others who are politically disadvantaged, and judicial rejection of economic regulation.  Our country was founded on individual rights, and the concept was written into the Bill of Rights, the adoption of which was central to the ratification of the Constitution itself.

Given the depth and breadth of our tradition of individual rights, it is hardly sufficient to overcome that tradition with a lot of mush about “the communal values and institutions that best afford our most disadvantaged the chance for a good life.”  Our “communal values and institutions” included Jim Crow segregation.  And how exactly did those “communal values and institutions” actually “afford our most disadvantaged the chance for a good life”?  It was our constitutional values and judicial institutions that ended Jim Crow – a wonderful work of that “equal protection of the laws” thing.

And third, although the right to privacy or “autonomy” has no textual basis in the Constitution, it nonetheless has deep historical roots.  Justice Louise Brandeis, one of our most respected Supreme Court Justices, famously wrote of the “right to be let alone.”  And in today’s technological age, if we did not have a right to privacy, we would have to invent it.  I grant that there is a serious argument to be made that the right ought to be created by amendment to the Constitution, but I would suggest that the right is better developed by the “common law” method – incrementally, case by case – than by an attempt at codification.  This is true, if for no other reason, because the technology that can facilitate intrusion on our privacy is developing so fast that a constitutional amendment could not be drafted and ratified before it became obsolete.


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