Constitutional Law

Conveniently Supporting Checks On Political Power

by Steve Sanders, a Chicago attorney specializing in appellate litigation and co-editor of the Sexual Orientation and the Law Blog. His personal homepage is www.stevesanders.net.

Conservative columnist George Will this week offered a bracing condemnation of the elected legislators – or, in his words, the 328 'braying ... yahoos' – who voted to punish a 'small, unpopular group' by taxing the AIG bonuses. Will also accused both the president and Congress of 'lawlessness' and 'situational constitutionalism' for their handling of issues such as NAFTA, standards for Mexican trucks on U.S. highways, congressional representation for the District of Columbia, and the financial crisis generally. 

Without getting into the merits of Will's complaints, let it first be said that it's refreshing to hear a conservative sounding alarm bells about the threats that the political branches of our government sometimes pose to constitutional principles. Indeed, this is the same instinct that animates many of us who advocate and litigate on behalf of individual rights and civil liberties. Of course, even the gutsiest civil libertarian might blanch before excoriating legislators (at least in public) as 'yahoos.' After all, civil libertarians have had to learn what sells. Reasonable arguments are more likely to work than ad hominem, tell-it-like-it-is condemnations, as cathartic (and apt) as those condemnations might sometimes be.

What's more curious about Will's attack, though, is that it seems itself to be a bit 'situational.' When the issues he cares about are at stake – protecting NAFTA, denying representation to the residents of D.C. – Will calls down wrath against opportunistic politicians whom he says regard the Constitution as merely a 'cobweb constraint.' Yet when it comes to attempts by Congress or the states to legislate in others ways that threaten individual rights and constitutional values, Will, like so many of his brethren, seems willing to entrust basic human liberties to the wisdom of these same politicians.

For example, did Will have anything even mildly censorious to say about 'braying yahoos' when Congress enacted the so-called Defense of Marriage Act ("DOMA") – a classic example of a majority inflicting harm on a 'small, unpopular' group? Not that I've been able to find. 

Indeed, like many conservatives, Will has criticized judges who dare to review (and sometimes overturn) the actions of elected legislators. The Supreme Court must resist, he has written, 'sitting as a nine-person legislature.' According to this anti-'judicial activism' school of thought among conservatives, elected legislators should be entitled to wide deference when they make laws on hot-button subjects like sodomy, abortion, flag-burning, or same-sex marriage, even when such laws appear to impair serious constitutional rights. On such contested social issues, conservatives often seem to believe, the most important principle is that the will of the political majority should prevail. 

Accordingly, conservatives also often resist heightened scrutiny and prefer that courts bend over backwards to find a 'rational basis' for such laws – even when poking into the legislative record or examining the consequences of a law reveals (as it often does) that the enterprise was unlike anything a normal person would consider rational. 

Take, for example, a law that says Indiana will not recognize a same-sex marriage from Massachusetts. Congress blessed this sort of outcome when it passed DOMA, and Will has characterized DOMA mildly as a measure that 'protects [the] right' of states to 'come to different conclusions' about same-sex marriage. Yet consider the consequences. A same-sex spouse who grows disenchanted with her marriage could move to Indiana, marry a man (which would be fine with Indiana, since it doesn't recognize the Massachusetts marriage), and become a bigamist. This is rational? Mr. Will, where is the outrage?

Similarly, in his critique of Lawrence v. Texas, the Supreme Court decision that struck down sodomy laws, we saw not the pithy, common-sense George Will, but rather the professorial George Will who was more indulgent of elected officials. '‘[U]nconstitutional' is not a synonym for ‘unjust' or ‘unwise,'' he counseled, 'and the Constitution is not a scythe that judges are free to wield to cut down all laws they would vote to repeal as legislators. Legislators can adjust laws to their communities' changing moral sensibilities ....'

Well, maybe that's what Will's 328 'yahoos' thought they were doing with the AIG bonuses: declaring that their communities' moral sensibilities had had enough of the avarice and greed that contributed to the current financial crisis.

I recognize that I'm painting here in broad strokes. I don't mean to oversimplify complex issues in legal and political theory about separation of powers, individual liberty, and the Constitution. Suffice it to say that it would be nice to see conservatives more often exhibit – on moral and social issues, as well as economic ones – some healthy skepticism about the wisdom of our elected officials, along with a willingness to acknowledge that courts and constitutions exist to provide a check on the political branches.

Full post as published by ACS Blog on March 27, 2009 (boomark / email).