Today’s Washington Post includes an opinion piece by conservative 4th Circuit Judge J. Harvie Wilkinson III, recently on the short list for a Bush appointment to the Supreme Court. In his rejection of both federal and state constitutional amendments to define “marriage,” he takes his constructionism seriously, and applies it consistently – not exactly what the radical anti-democratic movement currently using our community as fodder had in mind.
His eloquent defense of constitutionalism is yet another sharp blow to the small-minded opportunists who are hawking Marshall/Newman.
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 Section 1 of the Virginia Declaration of Rights reads: That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.
Judge Wilkinson is particularly troubled by the intent to “deprive or divest their posterity” of these inherent rights, or what the Some Families Foundation likes to call “defining marriage for the next generation.” It is the inherent right of each generation to determine their own public policy.
Ordinary legislation — not constitutional amendments — should express the community’s view that marriage “shall consist only of the union of a man and a woman.” To use the Constitution for prescriptions of policy is to shackle future generations that should have the same right as ours to enact policies of their own.
On the hypocrisy of noise about “activist judges:”
State constitutional bans on same-sex marriages vary considerably in their wording, particularly with respect to civil unions. But most would repose in judges the authority to interpret such ambiguous terms as “domestic union,” “similar to marriage,” “rights, obligations, privileges and immunities of marriage,” “incidents of marriage” and so forth. Thus the irony: Those who wish to curb activist judges are vesting judges with unprecedented interpretative authority whose constitutional nature makes it all but impervious to legislative change.
Judge Wilkinson is hardly a friend of the marriage equality movement, and is just as condemning of the Massachusetts Supreme Court ruling that found a constitutional right to marry the person of one’s choice. Unlike some of his ideologically driven colleagues, however, he acknowledges that there is a legitimate debate over this matter going on in society, and that we have a framework within which it can be properly resolved.
Is it too much to ask that judges and legislatures acknowledge the difficulty of this debate by leaving it to normal democratic processes? In fact, the more passionate an issue, the less justification there often is for constitutionalizing it. Constitutions tempt those who are way too sure they are right. Certainty is, to be sure, a constant feature of our politics — some certainties endure; others are fated to be supplanted by the certainties of a succeeding age. Neither we nor the Framers can be sure which is which, but the Framers were sure that we should debate our differences in this day’s time and arena. It is sad that the state of James Madison and John Marshall will in all likelihood forsake their example of limited constitutionalism this fall. Their message is as clear today as it was at the founding: Leave constitutions alone.
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