Blogging the Amendment

Offering a Forum to Discuss the Pros and Cons of the Marshall/Newman Amendment

J. Harvie Wilkinson on the Constitution — A True Conservative Speaks

We’ve often said over here at The Commonwealth Coalition that some of our strongest supporters are limited government Republicans, true conservatives who respect the rule of law and revere our constitutional system of government.

Writing in the Washington Post on Tuesday, sitting 4th Circuit federal court of appeals judge and oft-mentioned candidate for appointment to the US Supreme Court, J Harvie Wilkinson, argues passionately against using the federal and state constitutions to make social policy about marriage. 

Repeating one of The Coalition’s arguments — that it’s just wrong to use Virginia’s bill of rights to take away rights — Wilkinson says:

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 the Federal Marriage Amendment does.

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. To use the Constitution as a forum for even our most favored views 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.


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.

We couldn’t agree more!

Update:  Good discussion on the Judge’s oped over on national lawblog, Volkh Conspiracy.

See also Rick Sincere’s Thoughts.


September 6, 2006 - Posted by | activist judges, politics of marriage, unintended consequences


  1. This has got to be historic.

    When has a sitting federal appellate court judge ever expresed his opinion about a proposed constitutional amendment?

    Comment by Jerry Gray | September 7, 2006 | Reply

  2. Maggie Gallagher posted an odd response from a New York lawyer. Here is an excerpt:

    I also don’t know what to do with the claim that such amendments are bad ideas because they are (gratuitously?) offensive to the minority of the electorate that might wish to benefit from the legislation that is rendered impermissible. Any constitutional provision that bars the legislature from adopting policy X through the ordinary political process can be construed as “sending a message” to those members of the public who support policy X and/or believe they would benefit from its adoption that their views and interests are somehow considered out-of-bounds and not fit to be recognized by the law. Pretty much by definition, the “victims” of such a message will be a comparatively socially marginal and/or politically powerless group, or else their policy adversaries would not have been able to get the relevant constitutional provision enacted. Perhaps there are good arguments that the sense of rejection and alienation that the potential losers in this particular political struggle might feel should be given greater weight than has been customary in such struggles in the past, but Judge Wilkinson has not elaborated on what those arguments might be.”

    I think the writer is expressing outrage at same-sex couples who expect their relationships to be respected by society at large. How dare they.

    Comment by Jonathan Weintraub | September 8, 2006 | Reply

  3. It sounds as if he’s saying that if you are a member of a socially marginalized group, that proves that you don’t deserve to be protected from mob rule by the constitution.

    Maybe he’s one of those people who don’t much like constitutions in the first place. No wonder he wanted to remain anonymous.

    Comment by David | September 8, 2006 | Reply

  4. […] And, then there’s the simple beauty of Judge J. Harvie Wilkinson’s admonition to voters …. “Leave Constitutions alone.” […]

    Pingback by Lawyers, Lawyers Everywhere … Red Herrings and Other Smelly Fish « Blogging the Amendment | September 8, 2006 | Reply

  5. […] In this, she clearly sounds her agreement with Judge J. Harvie Wilkinson, who says voters should “Leave constitutions alone.” […]

    Pingback by Celebrating and Defending Virginia’s Constitutional History « Blogging the Amendment | September 13, 2006 | Reply

  6. Very good web forum, great work and thank you for your service.
    I simply mad about this forum!

    Comment by Cheeque | November 29, 2007 | Reply

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