Will Conservatives Honor the Constitution’s Text and History?

by David H. Gans, Director of the Program on Human Rights, Civil Rights, and Citizenship, Constitutional Accountability Center

In yesterday’s WashPo, George Will discusses the recent debate among conservatives over last summer’s 5-4 ruling in District of Columbia v. Heller, which announced that the Second Amendment protects an individual’s right to bear arms for self-defense purposes. Leading the charge against Heller is Judge J. Harvie Wilkinson, a well-respected conservative judge who sits on the U.S. Court of Appeals for the Fourth Circuit. According to Wilkinson, Heller is judicial activism – it announced a new right and will require the courts to create a whole host of new rules to enforce that right, none of which has a clear textual mandate in the Constitution. Heller, according to Wilkinson, is just like Roe v. Wade, that most hated precedent to conservatives. Judges hearing constitutional challenges to legislation, according to Judge Wilkinson, must exercise judicial restraint. Courts should defer to legislatures unless the Constitution provides unambiguous protection. Wilkinson finds both Roe and Heller equally wanting on this score.

But the difficulty – one that Will fails even to mention – is that the Constitution virtually never enumerates rights in unambiguous language. Many of our most important constitutional mandates are written as majestic generalities. Take the Fourteenth Amendment, which protects virtually all of our fundamental constitutional rights against actions by state and local governments. Written to secure the “new birth of freedom” Lincoln had promised at Gettysburg, the Fourteenth Amendment demands that states respect the fundamental principles of liberty and equality. The Fourteenth Amendment begins by declaring citizenship the birthright of all Americans, and with it the protection of all substantive fundamental rights. The Privileges or Immunities Clause was meant to protect all the liberties guaranteed in the Bill of Rights as well as other fundamental rights, such as the right of bodily integrity that underlies Roe. The Equal Protection Clause wrote equality into the Constitution. None of these clauses has the kind of unambiguous text that Wilkinson seems to demand. Even the First Amendment’s guarantee of “free speech,” which seems clear enough at first, becomes ambiguous when it comes to thoughts, expressions and actions that don’t actually involve uttering a word. Wilkinson’s approach, it seems, would give courts virtually no role in enforcing a whole host of our most basic constitutional rights. That cannot be the right way for judges to decide cases.

There is a much simpler approach on which there should be universal agreement: judges have an obligation to apply the Constitution’s text and history in resolving cases. That means honoring constitutional mandates, even when they limit what government may do. Judicial restraint is important too, but that principle cannot mean that courts may only intervene when there is an unambiguous constitutional right. Courts have an important role to play in our system of separation of powers to say what the Constitution means and to check unconstitutional actions by the legislative and executive branches. Judge Wilkinson’s argument about the role of courts is seriously out of sync with these fundamental principles.