Commentary: A beautiful Constitution lies underneath ugly precedents

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I recently was talking with a friend at a cocktail party given by the Dane County Bar Association in Madison (yes, I do have many friends in Madison, although they may find The Dark Side perplexing at times).

Anyway, we were talking about a house he once owned that was built in the 1920s. It was a beautiful house, he said, but required a lot of work. Besides the usual maintenance that an older home needs, much of what needed to be done was simply to undo previous owners’ desecration of the property.

For example, the house had beautiful woodwork, but every square inch had all been painted over. It had beautiful hardwood floors, but they had been covered with linoleum and other hideous floorings.

On the drive back to Milwaukee, the conversation got me to thinking about the United States Constitution. It, too, has been desecrated since the 1920s.

For example, in U.S. v. Carolene Products Co., 304 U.S. 144 (1937), in the infamous footnote 4, the Supreme Court declared its abdication of its responsibility to strike down statutes that impinge on citizens’ due process rights.

That was like putting some ugly linoleum over an oak floor.

Then, in Wickard v. Filburn, 317 U.S. 111 (1942), the court held that Congress’ power to regulate interstate commerce included the power to regulate any economic activity, no matter that it is wholly intrastate.

They might as well have painted over the woodwork.

And just as my friend had to put in a great deal of work to restore his home to its original beauty, so too must be put forth the work to restore the Constitution by overruling cases like Carolene Products and Wickard.

Which is why it is so troubling to me that, of the various names being tossed around to be the next Supreme Court justice, neither Richard Epstein nor Randy Barnett ever get mentioned.

Those cats would relish the hard work of ripping up the linoleum of our constitutional law precedents to show off to the world the hardwood constitutional floor that lies underneath.

Don’t get me wrong. If Seventh Circuit Judge Diane Wood gets nominated, I’ll say all the proper things. She is, without question, highly qualified. She’s been an excellent judge, and I would support her nomination to the Supreme Court.

Of course, that is only because the nomination of someone like Epstein or Barnett would be politically impossible, given the special interest groups to which the President must pander.

Nevertheless, it is a pity that nothing in Judge Wood’s otherwise exemplary tenure on the Seventh Circuit suggests that she is the sort who would roll up the sleeves on her judicial robe and start tearing out the hideous linoleum that hides our beautiful Constitution.