March 12, 2012


Cry, the Beloved Constitution (J. HARVIE WILKINSON III, 3/12/12, NY Times)

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. Badly conceived bills die a thousand political deaths -- in the appropriations process, in the states, through electoral retribution, in the executive appointments of a succeeding administration and ultimately in amendment and repeal. However, if 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.

Liberals are mounting their own, equally damaging, assault on the Constitution. They have forsaken the textual and historical foundations of that document in favor of judicially decreed rights of autonomy. It is one thing to value those rights our cherished Bill of Rights sets forth. But to create rights from whole cloth is to turn one's back on law.

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. What are the consequences when liberals shortchange democratic liberty in favor of judicial expansion of unenumerated personal rights? Well, for one, creating 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.

At a time of dismay over democratic dysfunction, the temptation to ask courts to supplant self-governance runs high. And yet when I look past the present debacle, and think of where democracy has brought this country, I would not lose faith.

Better we govern ourselves questionably than a small elite dictate to us.

Posted by at March 12, 2012 6:59 PM

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