Walter Dellinger’s Rule of Constitutional Law

February 10th, 2012

As told by his pupil Garett Epps:

The case illustrates the concept of “governmental interest” in constitutional law.  My Con Law prof, Walter Dellinger, once said the course could be summed up in two sentences: “When government wants to do something to you, it has to give a reason. When it wants to do something really bad, it has to give a good reason.” Judges weigh “stuff government wants to do to you” against government’s reasons, or “interests.”

Except when it involves rights subject to the rational basis test. No reason is needed. In fact, one can be made up by a judge, after the fact.

However, I think Garett’s analysis is at odds with our jurisprudence.

I rejoice at the result in Perry. But we needn’t mock the pain of some gay-marriage opponents who feel unheard. Their most heartfelt argument is this: “Marriage” has always meant a man-woman bond; to change that is to take away a certainty we rely on.

“It’s always been this way” is the essence of Edmund Burke-style conservatism. Reason, Burke argued, is fallible; we shouldn’t change traditional ways on such an uncertain basis. A wise society restricts even our best impulses: “the restraints on men, as well as their liberties, are to be reckoned among their rights,” Burke wrote in Reflections on the Revolution in France.

American law doesn’t recognize “better to let everything alone” as “legitimate,” much less “compelling.”  The right to marry is a constitutional right, long recognized in history and caselaw. The government can’t deny constitutional rights on the grounds that “we just always did it that way.”  Government has to give a reason.  In historical terms, that’s a remarkable thing. It reminds us that, underneath its social inertia and conservative exterior, America and its Constitution are the products of a revolution.

The Washington v. Glucksberg framework, which is used to identify new rights, looks to whether it is deeply rooted in our nation’s history and traditions. This is inherently a Burkean inquiry. If we’ve been doing it for a while, it’s probably right. “It’s always been this way” is the rule (though Garett probably disagrees with this silly historically-oriented test).