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.