Not long ago 4th Circuit Court of Appeals Judge J. Harvie Wilkinson III was rumored to be on President Bush’s short list of nominees to the United States Supreme Court. We have since learned that the President was aiming for judges younger than Wilkinson, but no conservative uttered a harsh word about him when his name was bandied about for a seat on the high court. That may now change with his editorial published this week in the Washington Post concerning the controversy over same-sex “marriage.”
Wilkinson starts the piece with a bang, claiming that “[t]he chief casualty in the struggle over same-sex marriage has been the American constitutional tradition.” Judge Wilkinson notes that 20 states have passed state constitutional amendments banning same-sex “marriage,” with more on the way, and while their passage is “all but foreordained, . . . the first principles of American law will be further endangered.” Judge Wilkinson employs this dire language because, in his view, “[t]he Framers of our Constitution . . . did not envision our Constitution as a place to restrict rights or enact public policies, as the Federal Marriage Amendment does.” Such actions are the business of “ordinary legislation,” according to Judge Wilkinson, and he implies that conservatives are being hypocrites by supporting the Federal Marriage Amendment when they have opposed federalizing issues such as abortion and equal pay for women in the workplace. He brushes off the threat of activist judges, instead intoning that using the Constitution “for prescriptions of policy . . . shackle[s] future generations . . . . [and] strikes a blow of uncommon harshness upon disfavored groups, in this case gay citizens who would never see this country’s founding charter as their own.”
For a man who has been a federal appellate court judge for 20 years and is recognized as one of the finest legal minds on the bench, Judge Wilkinson’s arguments are astonishingly poor. He talks about constitutions in a solemn tone and then fails to make even the most elementary distinction between federal and state constitutionalism. The Founders discussed time and again the fact that the federal constitution was different than state constitutions because of the federal government’s extraordinarily limited powers (which I know sounds funny given the size of today’s federal government, but in its original form it was quite small). The result was a very short federal constitution while state constitutions were decidedly larger because of the much broader spectrum of issues covered by state powers. This has remained the case even to this day, with our federal constitution still being among the shortest in the world, while many state constitutions run on at length covering all sorts of seemingly mundane issues. The most extreme example of this is the Alabama Constitution, which presently contains 773 amendments, taking up a healthy amount of shelf space and covering everything from a “game and fish fund” to termination of alimony upon remarriage.
Judge Wilkinson proclaims that the Founders were advocates of “limited constitutionalism,” but he sloppily applies broad generalizations to a specific issue. There are general differences between matters typically addressed in constitutions as opposed to those addressed through legislation. Traditionally, constitutions are about the form of government, i.e., how it is organized, while legislation is about the substance of government, i.e., what the government does within the general form spelled out in the constitution. However, this does not mean that substance is never to be dealt with in a constitution.
In contrast to the main body of the U.S. Constitution, the amendments to it often concern substantive issues. When the People have desired to set a national policy on an issue they deemed fundamental to the fabric of the nation, they have done so through amendments. Just to cite two obvious examples, the 13th Amendment’s abolition of slavery and the 19th Amendment’s granting women the right to vote are both substantive provisions. Under Judge Wilkinson’s rubric of constitutionalism, those issues should not have been dealt with through the amendment process because future generations cannot now debate those issues. Yet obviously that is silly because the People of the United States decided that slavery and voting were such fundamental issues that they should be placed beyond the ordinary legislative process.
Nothing about the nature of our Constitution prevents the People from doing the same concerning marriage. The very fact that the amendment process is provided for in the Constitution refutes Judge Wilkinson’s claim that the marriage issue is somehow not a suitable subject for the Constitution: the Founders placed no restrictions at all on what subjects could be addressed through the amendment process.
Undeterred, Judge Wilkinson claims that traditionally constitutions have not been used to codify public policies and then asks, “Where is the threat that justifies so radical a break with our constitutional heritage?” I would answer by asking Judge Wilkinson where he has been for the last three years since the Massachusetts Supreme Court invented a right to same-sex “marriage” in the infamous Goodridge case?
The “threat” is an activist judiciary at both the federal and state levels filled with judges who believe it is their responsibility to make policy for their respective states and the nation at large because they supposedly know better than the People what is good for them. We have been edging closer and closer in this country over the last 30 years to a de facto oligarchy in which our “philosopher-kings” called judges decide all important questions for us. When judges decided to inform us that something as fundamental as marriage must be redefined to include unions of the same sex, the people of this country finally decided they had had enough.
Judge Wilkinson throws up road blocks that he knows (or should know) beg the question when he claims that the Defense of Marriage Act (DOMA) provides sufficient protection against activist judges. It is far from settled whether DOMA will hold up in court. Judges very well could say that DOMA violates “full faith and credit” in the Constitution and then the People are back where they started: with judges forcing an unwanted social policy down their throats.
He waxes on about first principles, but ignores them to make his supposedly intellectual point about the real purpose of constitutions. What is more fundamental than letting the People decide what their government will endorse on the most basic issues? Despite Judge Wilkinson’s protests to the contrary, the state constitutional amendments defining marriage have been shining examples of the democratic process in action because in most states the people have voted directly on this basic issue rather than through their representatives in the state legislatures. It is the democratic process writ large and these democratic votes are what Judge Wilkinson describes as blows of “uncommon harshness upon disfavored groups.” Somehow it is now harsh to tell people the government will not sanction something that they have not been allowed to do for the last two thousand years.
The fundamental legal principle Judge Wilkinson ought to be focusing on is the abuse of power by judges, not some fuzzy idea of what constitutions are designed for versus what they are not. He is hiding behind the veneer of “limited constitutionalism” while avoiding the very reason marriage has become a constitutional issue. The people have no recourse other than amendments if judges are going to constitutionalize the marriage issue by inventing a right to same-sex “marriage.” Judges stepping outside their constitutional role and making law endangers our system of limited constitutional government, not amendments declaring the heretofore obvious fact that marriage must be between a man and a woman.
The stability of our constitutional republic depends upon the strength of the moral fabric of our society. If a constitutional amendment can help hold that moral fabric together, and if the People are in favor of such an amendment, then it should be enacted. Rome did not collapse because of amendments to the law; it fell because the empire’s internal moral decay left it vulnerable to external physical invasion by the barbarians. The same is true in America, which is why we must stand up for the sanctity of marriage—the foundation of family—and turn a deaf ear to wayward judges like J. Harvie Wilkinson III.
Chain of Liberty 
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