Bench Memos

Eminence Wheeze

I hate it when I’m right about things like this.  Last week, after reading George F. Will’s firebreathing column on King v. Burwell, I said to a colleague of mine, “Just wait.  If the Supreme Court invents a constitutional ‘right’ of same-sex marriage, he will do no more than shrug at the greatest violence to the Constitution since Roe v. Wade.”  I said it because Will, who used to rail against judicial activism with the best of conservative columnists, has in recent years taken a “libertarian turn” in his thinking, explicitly endorsing judicial activism in so many words.  Sadly, my prediction was right, though I was not quite prepared for the degree of insouciance on display in his column on the marriage decision.  For while some libertarians at least claim the mantle of originalism, Will has now come out as an exponent of the “living Constitution” school of thought.  This is quite an . . . evolution.

Consider Will’s column that went online within hours of the Burwell case.  This case involved the interpretation of a complex 900-page regulatory statute, and the interpretive questions are not easy ones.  Conservative commentators have made good arguments that Chief Justice Roberts got it wrong, that he even “rewrote” the law to save it from implosion.  But Will is over the top in his criticism, saying that “[b]y blurring, to the point of erasure, constitutional boundaries, [Roberts] damages all institutions, not least his court.”  But there is nothing that the Court did in Burwell that cannot be undone—better, more thoroughly, and with appropriate thought to the consequences—by Congress, or even by the next president, since the case involved an administrative gloss on the Affordable Care Act.  It’s a statutory interpretation case, for heaven’s sake.  Let’s get a grip.

But when, the next day, five justices of the Supreme Court brazenly rewrote the Constitution to protect a “right” to government recognition of a relationship that no civilization before the last two decades would have considered a marriage, Will’s reaction was that, hey, the Constitution evolves! 

As I have remarked in the past, I prefer the old Will to the new, and I rather wish the new one would acknowledge that the old one once existed.  Here is our columnist in December 1996:

Having become unpersuasive and hence uneasy in political arenas, liberalism dabbles at democracy but increasingly relies on litigation rather than legislation to achieve its ends.

In Hawaii, where 70 per cent of the residents oppose same-sex marriages, a judge has decided to redefine marriage, and hence society’s molecular unit, the family. He says the State is violating the State Constitution’s equal protection guarantee because there is no “compelling” reason to “discriminate” against homosexuals by not licensing same-sex marriages. . . .

So it goes in America’s judgeocracy. And recent days have shown conservatives’ willingness to use courts for their own purposes. . . .

Liberalism’s tactic is conservatism’s temptation. Judicial review is indispensable under constitutional government but excessive reliance on litigation is for political losers. . . . [T]here is no substitute for political victories won by shaping public opinion — by persuasion.

And here he is today:

Now, 147 years since ratification of the 14th Amendment, its guarantees of “equal protection of the laws” and “due process of law” mean that states, which hitherto controlled marriage law, must recognize same-sex marriages. Anthony Kennedy’s opinion for the court said: “The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.” (Emphasis added.)

Many conservatives detect in those five words a dismaying intimation of a “living Constitution” too malleable to limit government because it conforms to whatever shape serves transitory political and cultural impulses. Conservative wariness is wise. So too, however, is recognition that Chief Justice Warren was not wrong when, in a 1958 case concerning the Eighth Amendment’s proscriptions of “cruel and unusual punishments,” he said: “The amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”

The first of the quoted paragraphs in Will’s latest opens in a way reminiscent of an old professor of mine, a firm adherent of the “living Constitution,” who used to say “we now know” that X or Y or Z “is unconstitutional,” because a majority of the Supreme Court had just said so.  I used to laugh until I realized he wasn’t joking.

When Will was not excoriating Chief Justice Roberts last week, he was quoting Justice Scalia with approval.  Yet this past Monday, in a death penalty case, Scalia suggested that in a future case the Court might invite counsel to brief the question whether Trop v. Dulles—the 1958 case Will approvingly quotes above—should be overruled.  Thanks to its nonsense about judges imposing “evolving standards of decency,” Scalia said, Trop “has caused more mischief to our jurisprudence, to our federal system, and to our society than any other [case] that comes to mind.”

George Will used to think likewise.  In June 2010, after quoting Trop, Will wrote that for progressives, “[t]he cheerful assumption is that ‘evolving’ must mean ‘improving.’”  Later that same month, he quoted another Scalia opinion on Trop’s folly: the “antievolutionary purpose of a constitution . . . is to prevent change . . .” and certainly not to drive political change from the bench of the judiciary.

Will blandly acknowledges today that in the Republican party, unlike the Democratic, there is a lively debate about “the judiciary’s appropriate role in our constitutional system,” and he cautions against going too far.  No one wants to go off half-cocked, and there are temptations to do so.  But a man who can read Obergefell v. Hodges, and not recognize that it has precipitated a crisis of judicial tyranny and usurpation, is not equipped to be a meaningful contributor to productive thinking on the crisis.

Will also writes, rather ridiculously: “Marriage in America will be, over time, what Americans say it is, and last week’s decision came with almost three in four Americans already living in states where same-sex marriage is legal.”

But as everyone knows, the Supreme Court intervened to prevent marriage from remaining what Americans have repeatedly said it is, in over three-fifths of the states.  As for the three-quarters of Americans “already living in states where same-sex marriage is legal,” the question is how it got to be legal.  In the vast majority of the states, it was by judicial fiat.  In only eleven states was a legitimate democratic choice made.

Not content with rewriting our recent history—and cheerily greeting the rewriting of the Constitution—Will rewrites more ancient history as well.  (The only history he ignores entirely is his own.)  He opens his column with a couple of snippets from James Madison in 1824, in which the Father of the Constitution remarks on the way the “language of our Constitution is already undergoing interpretations unknown to its founders.”  Will would apparently have us believe that this was a development that Madison greeted with equanimity or even enthusiasm.  But here is a bit more from that letter to Henry Lee, in context:

I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no Security for a consistent and stable, more than for a faithful exercise of its powers. If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense. And that the language of our Constitution is already undergoing interpretations unknown to its founders, will I believe appear to all unbiassed Enquirers into the history of its origin and adoption.

This is a classic statement of originalist principles in expounding the Constitution (whether one agrees or disagrees with any particular reading of it on Madison’s part). And it expresses exactly the opposite of the view embraced today by George Will, who has left the company of Madison and joined that of Woodrow Wilson, Earl Warren, and William Brennan.