Bench Memos

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Wilkinsonian Constitutionalism, part two


Judge Wilkinson rightly recognizes that our country’s current problem with the constitutionalizing of the marriage issue began with runaway judges, such as those on the Massachusetts Supreme Judicial Court.  This was “constitutional excess,” he writes, and it is “altogether understandable for Congress and the state legislatures” to want to fire back with constitutional amendments at either level, or both.  But, he is sure, such a response is “the wrong thing to do.”  How does he know?  The judge lays down the following understanding of the Constitution’s purposes:

“The Framers meant our Constitution to establish a structure of government and to provide individuals certain inalienable rights against the state.  They certainly did not envision our Constitution as a place to restrict rights or enact public policies, as the Federal Marriage Amendment does.”

This is an oft-encountered argument in the current debate.  It has everything going for it except the text and history of the U.S. Constitution.  (I could begin by criticizing the apparent misunderstanding in the judge’s use of the phrase “inalienable rights” to describe what the Constitution contains—most of the rights in the Constitution are not of that character—but that is not terribly important for present purposes.)  The Constitution does, perhaps first and foremost, “establish a structure of government.”  The original text contains a few statements of rights, but most of the rights the document now contains were literally afterthoughts—i.e., embodied in amendments added later.  But it is not remotely true that the Constitution doesn’t “enact public policies.”  It’s full of them.  The text prohibits the taxation of exports.  It forbids preferential treatment of any state’s ports over those of other other states when Congress regulates commerce.  It prohibits states from running their own monetary systems, or “impairing the obligation of contracts.”  It forbids the granting of titles of nobility.  Are these “structural” features of government, protections of rights, or “public policies”?  Some look more like one, some more like another.

It is not even true that the Constitution never “restrict[s] rights,” as Judge Wilkinson claims.  The original Constitution trampled on the inalienable right of a slave to free himself, by escaping his bondage and making his way to where slavery was prohibited.  But then, the rendition of fugitive slaves was a “public policy” the framers apparently thought necessary for the sake of civil peace.

Bad example?  Only if you think that the Framers’ evident belief that they could put what was, for many of them, an unpalatable public policy restricting rights into the text of the Constitution, is evidence for the proposition that they didn’t believe you should put good public policies restricting rights into that same text.  The question is, what public policies do you want (rights-restricting or not), and how badly?  Are they important enough for giving shape and form to the polity constituted by the Constitution?  Then put ’em in.

And this assumes a positive answer to the question Judge Wilkinson begs: whether a limitation of marriage to heterosexual couples restricts anyone’s rights.  If one defines “rights” in a libertarian (or for that matter, Hobbesian) fashion, then a right exists wherever a prohibition does not exist—freedom prevails where the law is silent.  By that calculus, all law is nothing but one darned rights-restriction after another.  But if one proceeds as though our nature can tell us what are properly our rights, then it is far from plain that anyone’s “right to marry” is actually infringed when the law authorizes opposite-sex unions but not same-sex ones.


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