Florida v. Sebellius (Wilkinson, J., dissenting)

May 4th, 2012

“It may of course seem tempting to press the advantage when one seemingly has a judicial majority at hand. But this wheel shall turn,” Judge Wilkinson said. “Lasting credibility on an issue such as judicial restraint requires us to practice it, as the old saying goes, when the shoe pinches as well as when it comforts.” . . .

“Liberals have a vision whose central element often appears to be autonomy in lifestyle choices,” he said, alluding to abortion rights and same-sex marriage.

“Conservatives have a view in which liberty seems to pertain primarily to economic and market freedoms,” in areas such as environmental and commercial regulation.

With both sides seeing their positions “as constitutional imperatives rather than political aims,” he said, “the new game is to press one’s views into our fundamental charter such that our opponents are left with no quarter and are defeated not in the temporary sense of a political ebb and flow, but in the more absolute tones of constitutional condemnation.”

“In the early 1970s,” when Judge Wilkinson served as law clerk to Justice Lewis Powell, some members of the Supreme Court “sought to embody Great Society principles in the equal protection clause of our Constitution. But whatever the Great Society’s political merits or demerits, America did not need a Great Society Constitution,” Judge Wilkinson said.

“It is also one thing to welcome the Tea Party as a political movement, quite another to embrace a Tea Party Constitution. Political disputation and constitutional debate are simply different things, and it does our democracy no favors to confuse one with the other.”

 . . .

“But the explicit restraints on government do not empower judges to devise long lists of implicit restraints that suit their views,” he continued. It was fine for the tea party movement to oppose the federal health care law on policy grounds, he suggested, but mistaken to say the founders sought to disable the national government from attempting to solve national problems.

“Do we risk with contemporary activism the loss of the robust sense of nationalism embodied by the Framers in our founding document, a nationalism that is manifested in enumerated powers that were thought necessary to supplant the Articles of Confederation and to give a common identity to what were previously disparate economic units?” Judge Wilkinson said.

 From WSJ.