Virginia filed a federal lawsuit challenging a federal statute as unconstitutional and seeking to vindicate a state statute. It takes a special perspective for someone to view that federal-court filing as some type of indicator that the Commonwealth may have forgotten that the Civil War is over. Linda Greenhouse appears to have that special perspective, as her most recent Opinionator column reveals. (By the way, does the New York Times have a macro such that any story it runs on the Fourth Circuit must contain something about how the court sits “in the heart of the old Confederacy”?)
My problem is not with the substance of Greenhouse’s claim that Virginia lacked standing to sue the federal government. My problem is with the framing and tone. Reading Greenhouse’s column reminded me of reading portions of Justice Kennedy’s opinion in Gonzales v. Carhart, 550 U.S. 124 (2007). In these writings of Greenhouse and Kennedy, quasi-constitutional moralism not only distracts from the soundness of the underlying constitutional determination, but also provides unnecessary fodder for disagreement.