Everyone, it seems, wants to be a pundit. That includes J. Harvie Wilkinson, III, a federal appellate judge and one-time contender for a seat on the United States Supreme Court. Judge Wilkinson decries the fact that we debate endlessly in this country the scope and meaning of the federal constitution. Let it be, he counsels. It is too dangerous a fire to stir.
In an op-ed piece in this morning’s New York Times, Wilkinson warns of our national obsession with constitutional conflict. We harm ourselves by seeking to define ourselves, he suggests. Why it would be better, I suppose he believes, if we just left matters of constitutional interpretation to judges, preferably federal judges; better still if we left it only to federal appellate court judges. Best of all if we left it to those who, like Wilkinson, have written tomes on the constitution. Wilkinson is the author of a book entitled: "Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance."
Just why this particular umpire thinks we need him to walk out to the mound to throw a pitch or two is puzzling. Wilkinson tries to steer a middle course, striking a Hamiltonian pose in his suspicion of challenges to the Affordable Health Care Act’s requirement that people buy health insurance: such legislation will build a strong nation, he suggests, one capable of competing in a global economy. And he is also suspicious of those who press claims for gay marriage, suspecting it means creation of rights out of "whole cloth." As if the document were anything other than a parchment requiring each generation to interpret for itself.
Wilkinson’s piece reeks of the wick of privilege. Only a lifetime appointee to the federal bench could, without irony, utter the words "Don’t Tread On Me," and suggest that they be put to the use of making the constitution a mere historic artifact to be interpreted only by the judiciary. The constitution was spun at a given point in historic time out of whole cloth. We boast that our nation reflects a new secular order, one a few men in a tiny nation created in the wake of shaking off obligation to a distant empire.
The Roman orator Cicero once defined a constitution as a shared conception of right binding a people one to another. If it makes sense to speak of such a compact binding the 300 million souls populating the United States today, it makes no sense to say the document forged more than two hundred centuries ago and amended from time to time is a font of oracular wisdom and guidance. Historic contingencies produced a document sufficient to bind a people then; we are a far different people today. Doesn’t Wilkinson know the parable about pouring new wine into old skins? Forgive me if I fail to utter silent prayers to John Adams or James Madison.
There is a crisis of legitimacy festering in the United States. Nightline recently ran a story about Sovereign Citizens, folks who believe that the laws of this nation are null and void. The folks interviewed in the piece weren’t wild-eyed radicals: they were middle-class Americans who looked at the world around them and concluded that the law was no longer a friend, but a foreign, occupying power. These are the sorts of folks without lifetime appointments to good jobs. I’m betting these people didn’t even notice when the stock market his 13,000 the other day. They live in the other America, a place where hope is reposed not in reliving the past, but in imagining a better future.
And yesterday’s Times carried a magazine story about mass hysteria among high school girls in Le Roy, New York, a once prosperous blue-collar town now lagging behind an economy that offers hope to few and almost nothing to many. The author never once noted the similarity to the events in Le Roy and the events giving rise to the Salem witchcraft trials in colonial New England, when colonists faced a terrifying unknown just beyond the village green and feared the future. What if the young woman in Le Roy are merely expressing the despair that many feel: the rhetoric of equal justice for all, of Norman Rockwell’s bucolic towns, of cheerleaders and prom queens returning home to mom and dad on Main Street, just doesn’t match single-parent families, unemployment, teen pregnancy and homes falling into disrepair? There was a story that was never told in the Times’ reporting on Le Roy. I suggest that is because institutions like the Times are about as out of touch with the reality most Americans live as is Judge Wilkinson.
The constitution is a document requiring interpretation. It is much like the Bible in that it each reader must find in it such meaning as they can. That a changed and changing nation no longer reads it with the quaint and now anachronistic eyes of Thomas Jefferson or John Marshall should come as a surprise to no one. Pining away for yesteryear is the pastime of old men.
Wilkinson’s piece surprised me. Here is a judge preaching restraint by asking that the constitution be kept in the harnesses judges create by means of complex and sometimes confounding methods of interpretation. He urges that we keep the constitution in its place. This judge is preaching politics of a very particular sort, a form of nationalistic conservatism that no doubt has its audience, but does not, and cannot, own the constitution.
Each generation recreates the document for itself. Wilkinson doesn’t own it. No one does. Wilkinson’s fussy brand of conservatism is the sort of thing Elmer Gantry might preach on Main Street. Sorry, Harvey.