Cry, the Beloved Constitution: A rebuttal

When reading of the New York Times discussing the Constitution of the United States, I often expect that they will, in many ways, get it wrong. And thankfully a recent op-ed authored by J. Harvie Wilkinson, III, proved to be no disappointment.

What is mildly disappointing, however, is that Wilkinson is a judge. Not just any judge, but a Federal judge sitting on the bench of the United States Court of Appeals for the Fourth Circuit. He was appointed to the Federal bench in 1984 by President Reagan and confirmed by a divided Senate with a vote of 58-39.

He is also the author of the book Cosmic Constitutional Theory: Why Americans are Losing Their Inalienable Right to Self-Governance. I have not read the book and cannot recommend for or against it. I am not familiar with the Judge and his political leanings, if any, so my entire focus here will be just on the text of the article to which I am responding. One thing that is apparent from this piece is that the Judge is an advocate of judicial restraint.

The article in question is called "Cry, the Beloved Constitution" and was published March 12, 2012, on page A21 of the New York Times.

Judge Wilkinson does correctly state at the beginning that the interpretations and exercise of the Constitution by both liberals and conservatives – i.e. Democrats and Republicans, respectively – is certainly not within its language. Republicans have their sights most set on the Courts while Democrats seek to install new "rights" within the United States Code that have no basis in our Constitution, unless you take a very, very, very broad interpretation of the Ninth Amendment. Judge Wilkinson’s observation is certainly accurate and worth noting:

The result is a national jurisprudence whetted by political appetite, with our democratic values as the victims.

This was especially true with the jurisprudential landscape laid out in the 1930s with the Supreme Court’s over-expansive interpretations of the Commerce Clause and their effective rubber-stamping of FDR’s legislation.

He begins his article by responding to Republicans:

Conservatives increasingly bemoan Congress’s power to regulate interstate commerce, as illustrated by the debate over the Affordable Care Act’s requirement that individuals buy health insurance. They argue that Congress can only regulate activity, not inactivity, and so when it gets involved in a decision by a consumer to not purchase health care, it is going far beyond its reach.

If only it were that simple.

I agree, if only it were that simple. However this reduction of the Republicans’ view of the Commerce Clause is woefully incomplete. Republicans are correct that the Constitution does not grant the Federal government the ability to mandate anything, but instead provides the Federal government only regulatory power. Just as you cannot regulate the flow of water in a bucket, but you can a river or garden hose, the Federal government cannot regulate someone’s nonparticipation in a market segment, but its power to regulate only comes into play when that person chooses to participate in a market segment.

Now all of economics derives from two words: man acts. While inaction is the opposite of action, the decision to not act is an action. However that decision exists purely within the realm of a person’s mind and intentions and is outside the realm and purview of government regulation.

While you can put a stick into a bucket of standing water and stir it to get it moving, thus providing some regulation to the water’s movement, the Federal government is not granted the power to stir our economy with its legislative pen, only regulate those parts of our economy already moving.

A vibrant economic order requires some political predictability, and the prospect of judges’ striking down commercial regulation on ill-defined and subjective bases is a prescription for economic chaos that the framers, in a simpler time, had the good sense to head off.

Let’s take this in its two parts, starting with the first: "a vibrant economic order requires some political predictability". This is very abundantly true. Any person who is familiar with economics can see the truth in this statement without having to exert much thought: fear of future government regulation can have an impact on business decisions today, including the decision to start a business.

But the second part isn’t accurate. It isn’t the prospect of judges striking down regulations that is a prescription for economic chaos, it is the prospect of Congress or one of the many Federal agencies enacting new regulations and restrictions that is such a prescription.

When some teenagers nearly die after drinking a caffeinated energy drink and a Senator talks about outright banning the product from store shelves nationwide, people become nervous about what will be banned next, and this influences decisions by the consumers who purchase products and the businesses that make existing products and devise future products. If there’s the prospect that years of product research and development, including market research, will be wasted and unrecoverable with the stroke of the legislative pen, businesses may instead decide against introducing a new product, and we are all worse off when that occurs.

[I]f 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.

It is impossible for a Court to read the Constitution in a way to make Congress ineffectual. The Constitution lays out specific, enumerated powers for Congress and Congress is not to do anything that goes beyond those powers. Again Congress is granted regulatory power, yet most of what Congress has done, including the aforementioned Patient Protection and Affordable Care Act of 2010, is unconstitutional.

Next the Judge turns to the Democrats.

[Liberals] 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.

It is difficult to escape the observation that the Ninth Amendment is the most ignored Amendment in the entirety of the Constitution: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." This is especially true on the part of Republicans, as the Ninth Amendment is quite inconvenient with regard to advancing their agenda, but it is also true of Democrats as well in many ways.

Obviously where the government is granted power, the Ninth Amendment must cede to that power. For example, any perceived or actual right of the people to be free from government regulation with regard to interstate commerce must cede to the power of Congress to regulate interstate commerce.

But where the Federal government exercises powers in excess of those granted in the Constitution, the Ninth Amendment is intended to be the language that gives the people the power to say the government has gone too far. Imagine in your mind that the Federal government is the Balrog of Moria and the Ninth Amendment is Gandalf standing on that stone bridge shouting "You shall not pass!" Similar concept, as the government always exercises its authority in violation of the rights of the people. It doesn’t matter what the government does, as it will always violate the rights of the people in the process. But the Constitution is the way the people have, through the ratifying conventions, ceded certain rights to the Federal government.

The Due Process Clause of the Fourteenth Amendment provides similar power to the people with regard to the States.

So while the Ninth Amendment seems to be the most ignored Amendment with regard to debating the Constitution, it is the most cited Amendment when lawsuits against the Federal and State governments are filed in Court. When the people cite the Ninth Amendment against the government, it is then the responsibility of the government to cede the stolen power to the people, or satisfactorily justify it from elsewhere in the Constitution.

[C]reating 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.

Yes and no. It depends in whole on what "rights" are being created out of whole cloth. If we’re talking about what I’ve previously termed "rights of the silver platter" (here), then certainly this has that ability. After all if you attempt to assert the people have a constitutional right to be lazy (they don’t, by the way), then this can and will undermine much of our society.

But society is nothing without the individual: autonomous individuals capable of acting on our own wills and desires. As such when the majority seek to restrict the ability of a person to act on their own wills and desires, that restriction must very much be justified, and saying "because we’re the majority and majority rules" doesn’t cut it.

Again where the government acts, it is always in violation of the rights of the people. As such the actions of the government must be such that the violation of those rights is as minimal as possible. So when the government requires people to purchase a license from the government to get married, the people can legitimately demand that such a requirement not be exercised in such a way as to restrict the ability of two consenting, contractually competent adults from marrying.

But when the government seeks to restrict the actions of an individual where the effect of those actions goes no further than that individual and has no impact upon another person, then those restrictions warrant extra scrutiny.

Society is nothing without the individual, and individuals are nothing without their individual rights.

I’ll close with the Judge Wilkinson’s closing paragraph, which satisfactorily sums up everything:

All factions owe their fellow citizens the hope and the prospect of democratic change, not the message that their views have been constitutionally condemned and their opponents’ views carved in the stone of our founding charter. Restraint has much to commend it as a judicial value, not least of which is that it extends the hand of tolerance and respect to those whose views we may not share, but whose citizenship we do share and whose love of family, community and country burns no less brightly than our own.