Norm Pattis writes today about Hon. J. Harvie Wilkinson, III, and his opinion on opening up the legal can of worms that is is the U.S. Constitution. Judge Wilkinson, in an op-ed piece in the New York Times, suggests that all the debate over the meaning of the Constitution–and, I suppose, the increasing amount of it every four years–really does not serve us well. Judge Wilkinson argues that elevating every argument to a discussion of Constitutional interpretation and values risks either demeaning the value of fully debated and vetted federal legislation or devaluing the laws of state and local communities.
Norm takes issue with the Judge’s piece, and, I think, understandably so. While Judge Wilkinson argues that much of what passes for constitutional debate is really political argument, Norm argues against the kind of conservatism advocated by Judge Wilkinson because it would “keep the Constitution in its place;” that is, tied up in interpretations that are themselves governed by opaque rules of interpretation. As Norm correctly and poetically observes, “Each generation recreates the document for itself.” No one owns the law.
Norm’s position is one I’ve stated myself on this blog. Nevertheless, I’m sympathetic to the basis for Judge Wilkinson’s argument. To me, the real danger lies, not in the elevation of political argument to the constitutional level, but of the dragging down of the Constitution to mere politics. How many times in recent years have we seen proposals for new Constitutional amendments, be they to define marriage, allow school prayer, require a balanced budget, or–let’s face it–see to it that Arnold Schwarzenegger is eligible to run for President? The trend in our national discourse has been to have more and more of these proposed amendments come along. And that says to me that the Constitution is being regarded as the ultimate political end run. Tired of debating something? Get a constitutional amendment passed, and kick it all over to the courts. Let them deal with the fallout. Even if you can’t get it passed, you’ve taken an uncompromising position and can’t be accused of being wishy-washy.
The Constitution should be interpreted by each generation, but its interpretation should be governed in light of its history. It doesn’t exist for the transient political whim of the moment, and I like to think that is what Judge Wilkinson was getting at. There is always going to be a tension between fundamental rights and lesser ones when we examine them through the lens of the law. As Justice Brennan once wrote, “the demands of human dignity will never cease to evolve.” That is reason enough for flexibility in our Constitutional interpretation. But present passion should always be safeguarded by long-term perspective. The values enshrined by the Constitution are contemporary; but the underlying principles are also eternal.