George Will - Heller as Case of Judicial Activism


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RPCVYemen
November 24, 2008, 12:20 PM
George Will had an interesting column yesterday, comparing Heller to "Roe v Wade" - presenting an argument that both of these decisions represent judicial intrusion into the legislative process. The argument in a nutshell (note that it's not altogether clear whether Will agrees with this argument):


"When rights are unambiguously enumerated, courts should protect them vigorously."
"... when a right's definition is debatable, generous judicial deference should be accorded to legislative judgments ..."
"... there are powerful, detailed, historically grounded 'originalist' arguments for opposite understandings of what the Framers intended with that right to 'keep and bear arms.'"
[Therefore the interpretation of the Second Amendment should have been left to the States], "... which should enjoy constitutional space to function as laboratories for testing policy variations."
"Roe and Heller, ... diminish liberty by "handing our democratic destiny to the courts."'


Will's argument (his presentation of Wilkinson's argument) intrigues me. That's mostly because the conservative movement of my youth had a deep suspicion of the Federal government, and generally thought the Federal government should defer to the States. That was the core of the non-racist opposition to the Civil Rights Voting Act (not that there wasn't a racist component as well). In fact, the Goldwater conservatives would have lustily applauded Obama's dictim on gun control:

Works in Chicago may not work in Cheyenne.

So you have a liberal (really centrist) Democratic President arguing for States' rights, and a conservative movement arguing for judicial intervention. Who would have thunk it?


WASHINGTON -- Of conservatives' few victories this year, the most cherished came when the Supreme Court, in District of Columbia v. Heller, held for the first time that the Second Amendment protects an individual right to bear arms. Now, however, a distinguished conservative jurist argues that the court's ruling was mistaken and had the principal flaws of Roe v. Wade, the 1973 abortion ruling that conservatives execrate as judicial overreaching. Both rulings, says J. Harvie Wilkinson, suddenly recognized a judicially enforceable right grounded in "an ambiguous constitutional text."

Writing for the Virginia Law Review, Judge Wilkinson of the 4th U.S. Circuit Court of Appeals says Heller, like Roe, was disrespectful of legislative judgments, has hurled courts into a political thicket of fine-tuning policy in interminable litigation, and traduced federalism. Furthermore, Heller exposed "originalism" -- the doctrine that the Constitution's text means precisely what those who wrote its words meant by them -- as no barrier to "judicial subjectivity."

The Second Amendment says: "A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." Until June, the question was: Is the right guaranteed to individuals and unconnected with military service, or only to states as they exercise their right to maintain militias? The court held, 5-4, for the former view.

In Roe, the court said the 14th Amendment guarantee of "due process" implies a general right of privacy, within which lurks a hitherto unnoticed abortion right that, although "fundamental," the Framers never mentioned. And this right somehow contains the trimester scheme of abortion regulations.

Since 1973, the court has been entangled in the legislative function of adumbrating an abortion code, the details of which are, Wilkinson says, "not even remotely suggested by the text or history of the 14th Amendment." Parental consent? Spousal consent? Spousal notification? Parental notification? Waiting periods? Lack of funding for nontherapeutic abortions? Partial-birth abortion procedures? Zoning ordinances that exclude abortion facilities? The court has tried to tickle answers for these and other policy questions from the Constitution.

Conservatives are correct: The court, having asserted a right on which the Constitution is silent, has been writing rules that are detailed, debatable, inescapably arbitrary and irreducibly political. But now, Wilkinson says, conservatives are delighted that Heller has put the court on a similar path.

In Heller, the court was at least dealing with a right the Constitution actually mentions. But the majority and minority justices demonstrated that there are powerful, detailed, historically grounded "originalist" arguments for opposite understandings of what the Framers intended with that right to "keep and bear arms."

Now the court must slog through an utterly predictable torrent of litigation, writing, piecemeal, a federal gun code concerning the newfound individual right. What trigger locks or other safety requirements impermissibly burden the exercise of this right? What registration requirements, background checks, waiting periods for purchasers, ballistic identifications? What restrictions on ammunition? On places where guns may be purchased or carried? On the kinds of people (e.g., those with domestic violence records) who may own guns? On the number of gun purchases in a month?

Judicial conservatism requires judges to justify their decisions with reference to several restraining principles, including deference to the democratic branches of government, and to states' responsibilities under federalism. But, Wilkinson writes, Heller proves that when the only principle is originalism, and when conscientious people come to different conclusions about the Framers' intentions, originalist judges must resolve the conflict by voting their policy preferences.


It has been said that the most important word in the Supreme Court's lexicon is not "liberty" or "equality" or even "justice," it is "five." But whereas in baseball a tie goes to the runner, in controversies about the constitutionality of legislation, a tie between serious arguments should, Wilkinson says, tilt judicial judgment to the democratic side -- the legislature.

When rights are unambiguously enumerated, courts should protect them vigorously. But Wilkinson says that when a right's definition is debatable, generous judicial deference should be accorded to legislative judgments -- particularly those of the states, which should enjoy constitutional space to function as laboratories for testing policy variations.

Roe and Heller, says Wilkinson, diminish liberty by "handing our democratic destiny to the courts." Many libertarian conservatives disagree, arguing that the protection of individual liberty requires robust judicial circumscription of democracy.

So, regarding judging, too, conservatism is a house divided. And as Lincoln said (sort of), a house divided against itself is really interesting.

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SuperNaut
November 24, 2008, 01:02 PM
Volokh talks about this in his current lecture. An interesting point he makes is that originalism is strangely only able to be fully practiced now. The advent of the internet in combination with the only recent upload and accessibility of period texts enable quick and cheap searches for supporting documents and phraseology. While from a layman's perspective or from the pundits chair, the Heller decision may seem to be a case of judicial activism, in reality the Heller decision has the most supporting documents of any Supreme Court decision in history. It is as air-tight as these things get.

While policy preferences may factor into any SCOTUS decision I disagree with Will about how much influence these preferences hold. Especially if a judge has a huge number of supporting documents and information available to provide context. The strength or weakness of an argument is what sways a Supreme Court decision, not whether or not a judge has an R or D beside his name. If a judge used his personal preferences alone as a basis for his position, his position is weak and easily defeated. If you read Steven's dissent you'll see a perfect example of such a weak position based on personal preferences.

TimRB
November 24, 2008, 01:19 PM
Judge Wilkinson seems to be relying on the fact that the vast majority of voters will never actually read the text of the Heller decision and see for themselves the brilliant analysis of the Second Amendment written by Justice Scalia. Does he really mean to imply that finding an individual right is judicial activism that does nothing more than create additional work for the court in new lawsuits? What about the possibility that there are laws on the books that infringe on the 2A and need to be challenged in the name of what is right and just?

As for the concept of deciding ties by the intentions and wishes of Congress, he would do well to remember that for many years a strong majority in this country thought that slavery was just fine, and that no one other than land-owning white men should be allowed to vote.

Tim

Beagle-zebub
November 24, 2008, 01:23 PM
People are always talking about Roe in reference to Heller. I think they should mention Brown v. Board as well.

For sure, one can't simply look at the 14th Amendment and find an explicit statement to the effect that segregation is unconstitutional; however, given the reasonable assumption that segregation creates inherently unequal conditions, the 14th's Equal Protection clause gives good grounds to conclude that those on the wrong end of segregation are getting shafted. Sure, it's not completely direct, since the state in the 1860s did little to provide active services, rather than passive protections, but that inversion is a simple and sound one to make. Constructionists who don't have an agenda and who aren't hyper-martinets can and do accept this logic.

The degree to which one must troll the Federalist papers and state constitutions to find the justification for Heller is hardly more contrived than Brown. The only assumption that Heller requires is that the purposes of self-defense and military readiness, which were covered by the same weapons in the 1790s, are still individually honored now that the hardware is specialized to these purposes--I don't think that is at all crazy to conclude. Those who would cry "states' rights!" as with Brown should likewise be reminded that the protections afforded to the states only go so far as the US Constitution doesn't give overriding power to the federal government, per the 10th Amendment--in both Brown and Heller, there is a fairly clear way to understand that the Constitution overrides the states' rights in these instances.

In contrast, nothing in the US Constitution speaks to the central issue of Roe v. Wade: whether or not, and to what degree, a fetus has the entitlement to life that a person does. The "penumbra" of a right to privacy, if we can assume it, wouldn't matter if the fetus were indeed legally a person. In the absence of any guidance on this issue in the US Constitution, it is left to the states to define when personhood and its attendant legal rights begin--this is what Texas had done in setting its abortion laws.

RPCVYemen
November 24, 2008, 01:32 PM
An interesting point he makes is that originalism is strangely only able to be fully practiced now.

I think that cuts both ways - the cheap and easy searches also make it easier to discover the complexity of the views of the framers. The framers were a motley lot, with little uniformity of opinion about anything.

I don't, however, think that the advent of the Internet changes much about Will's (or Wilkonson's - it isn't clear) objection to the decision. Will is advocating a very traditional conservative position - if the intention of the phrase in the Constitution is debatable, then the interpretation should be left to the States. Note that debatable is a pretty low bar.

I think that the debatability of the intention of the 2nd Amendment is undeniable. You and I agree about which side of the debate should prevail - but that it not to say that the notion is not debatable.

I was interested in the change in the conservative movement. Contemporary conservatives seem less respectful (in general) of States' rights than traditional conservatives. Another example would be that I think Goldwater conservatives would find Federal intervention against a State's "Medical Marijuana" laws an anathema.

If I understand Will's point, both "Roe v Wade" and Heller represent judicial activism - repellent to traditional conservative understanding of federalism, albeit one a case of "liberal" judicial activism, the other a case of "conservative" judicial activism.

Mike

RPCVYemen
November 24, 2008, 01:35 PM
People are always talking about Roe in reference to Heller. I think they should mention Brown v. Board as well.

I think Will has called "Brown v. Board" bad law and and bad sociology. But maybe that was Buckley.

Mike

Beagle-zebub
November 24, 2008, 01:43 PM
I was interested in the change in the conservative movement. Contemporary conservatives seem less respectful (in general) of States' rights than traditional conservatives. Another example would be that I think Goldwater conservatives would find Federal intervention against a State's "Medical Marijuana" laws an anathema.

I think this is interesting, too.

The federal government tried to justify their ban on marijuana, under any circumstances, on the grounds of their enumerated right to regulate interstate commerce. Since medical marijuana need not cross state lines, this idea that they can ban it under all circumstances is preposterous--if it doesn't cross state lines, it's not interstate commerce, and thus the federal government has no constitutional right to regulate (and in this case, proscribe) it. When an act of commerce is across state lines, it is then that the federal government can regulate it.

I favor state choice on 10th Amendment grounds, but I see the 2nd Amendment as overriding the 10th, as does the 1st. Of course, George F. Will might believe that states have the right to interpret the meaning of a right to free speech, in which case I would like to advocate that the sovereign state of Illinois interpret the 1st Amendment as being to the exclusion of honky journalists named George F. Will.

(I would be especially amused by a subsection providing a definition of the word "honky.")

General Geoff
November 24, 2008, 01:56 PM
States don't have rights. They have powers.

RPCVYemen
November 24, 2008, 03:19 PM
Of course, George F. Will might believe that states have the right to interpret the meaning of a right to free speech

I think not. I suspect he would find most of the rights enumerated in the 1st considerably less ambiguous - less debatable - than the 2nd.

When rights are unambiguously enumerated, courts should protect them vigorously.

The marijuana claims, lot of other specious arguments rely on the Interstate Commerce claise.

on the grounds of their enumerated right to regulate interstate commerce

Interstate commerce seems to have left a pretty big hole in the Constitution - all kinds of malarkey have been driven through that hole.

Mike

Dr. Tad Hussein Winslow
November 24, 2008, 04:34 PM
The idea that being AGAINST the Heller outcome is somehow PRO-State's-rights is ludicrous, because Heller had solely to do with the FEDERAL government infringing a right protected by the Federal constitution. The argument isn't interesting or valid in the slightest. It might be a tad interesting if and when it's an individual state's actions that are trying the great gun control experiment and are shot down by the courts. Still wouldn't be valid, because the premise of the argument is that the extent/nature of the right is DEBATABLE - it's not - it's as clear and unequivocal as any other right, such as the rights in the 1A. Saying the 2A is "debatable" or "equivocal" just becuase the nimrods in the 9ths circuit fabricated the national guard theory out of thin air is no more valid than saying that the shape of the earth is "debatable" just because the Flat Earth Society folks vehemently debate it. George Will is being a non-thinking nincompoop on this one - he's anti-gun, though, so go figure.

JImbothefiveth
November 24, 2008, 05:03 PM
You could apply the "founding father opinion test".

While the founding fathers would have no problem with someone keeping a pistol in their home, they probably would have a problem with abortion.

That's why "Heller" isn't judicial activism, but Roe v. Wade is, one keeps with the framer's intentions, the other doesn't.

Beagle-zebub
November 24, 2008, 05:42 PM
argument is that the extent/nature of the right is DEBATABLE - it's not - it's as clear and unequivocal as any other right, such as the rights in the 1A. Saying the 2A is "debatable" or "equivocal" just becuase the nimrods in the 9ths circuit fabricated the national guard theory out of thin air is no more valid than saying that the shape of the earth is "debatable" just because the Flat Earth Society folks vehemently debate it. George Will is being a non-thinking nincompoop on this one - he's anti-gun, though, so go figure.

Well, see, the Flat Earthers are just of the opinion that the Earth, which we all know to be less than perfect in its roundness, is closer to being flat than round; round Earth people are simply on the other side. Naturally, the answer is to let the states decide for themselves.

RPCVYemen
November 24, 2008, 05:53 PM
You could apply the "founding father opinion test".

The problem is which founding father?

And do you pay attention to his words or actions? For example, Jefferson's actions as President belied many of his writings - which do you believe best represents his opinion?

Mike

JImbothefiveth
November 24, 2008, 07:08 PM
For these 2 cases, I'd expect most, if not all of them to be in agreement.

RPCVYemen
November 24, 2008, 08:43 PM
The idea that being AGAINST the Heller outcome is somehow PRO-State's-rights is ludicrous, because Heller had solely to do with the FEDERAL government infringing a right protected by the Federal constitution.

Are you making the relatively trivial technical point that that the District of Columbia is not a state?

Or do you seriously expect that Heller will not be applied to State legislation? Or to States? For example, to Chicago or New York?

Mike

XD-40 Shooter
November 24, 2008, 09:41 PM
In the article, where George Will talks about "reasonable regulations", my question is, "what part of shall not be infringed", do they not understand?

moewadle
November 24, 2008, 10:37 PM
since we do I will say that, THERE IS NO SUCH THING AS JUDICIAL ACTIVISIM!!! PERIOD, END OF STORY. The checks and balances involve the Judicial, Executive, and Legislative as we all know. It is the duty and job of the courts to decide if a law is constitutional or not......the accusation of judicial activism is simply used as a political manipulation to try and get a certain side of an issue to be successful. That is......"The federal judge did not rule my way on such-and-such an issue so the judge is practicing judicial activism." That is a bunch of poly rot. It is political manipulation. Think about it.

XD Fan
November 24, 2008, 11:03 PM
I didn't think we had political threads but
since we do I will say that, THERE IS NO SUCH THING AS JUDICIAL ACTIVISIM!!! PERIOD, END OF STORY. The checks and balances involve the Judicial, Executive, and Legislative as we all know. It is the duty and job of the courts to decide if a law is constitutional or not......the accusation of judicial activism is simply used as a political manipulation to try and get a certain side of an issue to be successful. That is......"The federal judge did not rule my way on such-and-such an issue so the judge is practicing judicial activism." That is a bunch of poly rot. It is political manipulation. Think about it.

The problem with your argument is that judicial activism is completely possible. Saying that it can't exist does not make it impossible or non-existent. It there is no relevant constitutional basis for or case law to support a judicial decision, this would qualify as a judge make a ruling that steps outside of his/her role as defined by the constitution.

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