Richard Posner has an interesting article — essentially an application of his recent Harvard Law Review Foreword — critiquing the Supreme Court’s decision in Heller, the D.C. gun control case. It’s a useful corrective to the glib certainty of the majority opinion and its strongest supporters. And yet, it’s frustrating in its own right.
One problem is his apparent assumption that until very recently conservatives had a principled opposition to an activist judiciary, as opposed to an opposition to the substantive decisions of the Warren and early Burger Courts: “The idea behind the decision–it is not articulated, of course, and perhaps not even consciously held–may simply be that turnabout is fair play. Liberal judges have used loose construction to expand constitutional prohibitions beyond any reasonable construal of original meaning; and now it is the conservatives’ turn.” Given that there’s never been a post-Civil War court with a conservative median vote that didn’t engage in significant activism with highly contestable constitutional moorings, the basis for this is unclear. Well over a century after the Civil Rights cases and Allgeyer and nearly a century after Hammer v. Dagenhart, it’s strange indeed to view reactionary judicial activism as a 21st century phenomenon. Also odd is the absence from Posner’s account of a rather notable recent example of unprincipled “judicial activism” far, far more egregious than Heller — Bush v. Gore. Presumably, this is because Posner wrote an entire book using pragmatism and what can only be called law-office democratic theory to defend the Court’s decision in the latter. Posner is entitled to change his mind, of course, but when he complains the he “cannot discern any principles in the pattern of the Supreme Court’s constitutional interpretations” one would think this would compel an acknowledgment of his own strong support for a “loose construction” that reached congenial results for conservatives.
This brings us to another problem, which is that rather thancorrectly noting that the legal materials surrounding the SecondAmendment are considerably more complex than Scalia can allow
and admit to multiple reasonable interpretations, he simply asserts
without anything like the necessary evidence that Scalia is wrong.
(“The text of the amendment, whether viewed alone or in light of the
concerns that actuated its adoption, creates no right to the private
possession of guns for hunting or other sport, or for the defense of
person or property.”) This goes too far. His analysis is at one point
even contradictory: he can’t seem to decide whether Scalia’s position
is nonsense because “[i]t is doubtful that the amendment could even be
thought to require that members of state militias be allowed to keep
weapons in their homes, since that would reduce the militias’
effectiveness,” or because “the ratifiers of the amendment probably did
think that the right of militiamen to keep and bear arms entitled them
to keep their weapons in their homes.” Which is it? His overreaching
certainty extends to other cases: for example, he claims that the
contemporary doctrine that the Bill of Rights is “incorporated” against
the states was “decided in the teeth of the language of the Fourteenth
Amendment.” It is true that the Fourteenth Amendment repeating the
language of the due process clause of the Fifth is a point against the
incorporation theory, but it is hardly dispositive. Proponents of
incorporation can point to the other side’s own textual puzzles — why
did the framers of the 14th Amendment bother to include a privileges
and immunities clause that allegedly just re-affirmed some minor rights
already recognized prior to the Civil War? — and cite important
historical evidence such as the fact that the floor manager of the
Amendment expected it to incorporate the Bill of Rights. One can
disagree with Black‘s arguments, but to claim that they contradict the text of the Fourteenth Amendment is silly.
Posner is right that constitutional interpretation in interestingcases inevitably involves a significant amount of judicial discretion,although I don’t think that calls for “judicial modesty” have muchpoint; as long as activist judicial review serves the interests of the legislators who make it possible,
it will continue, and the part of judges of all ideological
persuasions. But Posner’s own unfounded certainties about the meaning
of broad, ambiguous constitutional provisions tend to undermine his own
argument.
—Scott Lemieux
