Wednesday, July 02, 2003

Constitutional Law

After Lawrence v. Texas, we are seeing a new outpouring of assertions, especially by "conservatives," to the effect that everybody (sometimes, it is said, especially "liberals") tries to enshrine all of his or her policy preferences as constitutional doctrine, and that Lawrence is an exemplification of that purported fact. For instance, in response to Justice Thomas's opinion stating that he's against sodomy laws as a matter of policy but believes that the Constitution permits them anyway, Stuart Buck says

Once again, Justice Thomas shows that he, perhaps more often than any other Justice, is willing to distinguish between his own political preferences and what the Constitution actually says. And judging from the outpouring of commentary that I've read in the past day, he may be one of only a handful of people in America who are capable of making such a distinction.

But really, everyone in America is capable of making that distinction, I think, and everyone who thinks at all about constitutional law makes the distinction easily. Here are some examples, for myself.

(1) I would prefer that the federal labor laws provided that an employer had to recognize a union if a majority of employees signed authorization cards. But I recognize that the Constitution does not so provide; winning that right is a matter of legislation, or of interpreting existing legislation. I could come up with many more examples, and I have no doubt that you could, too.

(2) Some (e.g. Stuart Buck) might say, that's too easy -- it's easy to think of laws you might like to enact that are not constitutionally required, but try to admit that there's a law that you oppose but that is nonetheless constitutional. That's easy too. Just off the top of my head, here's an example: I don't think that lawsuits ought to be removable from state court to federal court on the grounds of diversity of citizenship, and I don't like the fact that 28 U.S.C. § 1441 allows such removal. But I recognize that the law passes constitutional muster. Again, I could come up with more examples, and I have no doubt that you could too.

In other words, there's nothing honorable about Justice Thomas's position in Lawrence. We all are satisfied to leave most things to the legislative process, rather than to constitutional doctrine. We just disagree on the content of constitutional doctrine. Fortunately, Justice Thomas's ultra-crabbed view of the Constitution is not the prevailing view.

posted by sam 9:47 AM 0 comments

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