Strengthening Constitutional Self-Government

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Was HELLER Judicial Activism?

Conservative experts Wilkinson and Posner say it was. Wilkinson, in fact, says it looks a lot like ROE. Did Scalia deviate from his pretty consistent ethic of judicial restraint here? My own view (and I’m willing to be convinced otherwise) is that Wilkinson’s noteworthy article is full of exaggerations, but his big point might actually be right.

Discussions - 23 Comments

By big point you mean that an exclusive reliance upon originalism is neither workable nor traditionally the only conservative means of promoting judicial restraint?In some sense, Wilkinson's criticisms of Scalia are reminiscent of Jaffa's that a thoroughgoing originalism/textualism can actually prove more obfuscating than instructive---still, conservatives seemed to start heavily emphasizing narrow intent to counter some pretty pernicious currents in constitutional interpretation

I'm really a layman here but Wilkinson argument, if applied consistently would cripple judicial review where any controversial issue is involved. His argument seems to boil down to the following main points: 1)There is diagreement on the meaning of the Second Amendment. 2) There is public division over the nature and scope of gun regulations. So therefore the court should let the legislatures regulate or ban guns as they please because to to dotherwise would be judicial activism.

Here Wilkinson crosses a line from judicial humility to something else. Any controversial issue that comes before the court is going to involve a divided public and contrary arguments about the meaning of the Constitution. That is what makes it controversial. To say that the court should defer to legislatures when the case is unclear is one thing. Part of the purpose is to determine whether or not the case is clear. To use the fact of public and constitutional argument as an excuse allow violations of the Constitution to stand is an evasion of duty.

To the extent that Wilkinson argues that HELLER was wrongly decided on the merits, ok. But to the extent that he argues that laws that might violate the Second Amendment (and not only the Second Amendement)should not be subject to judicial review because of the fact of public and scholarly controversy (without examination of the merits of the controversy), Wilkinson would allow states localities and the federal government enormous leeway in violating rights that judicial review exists to protect.

I suspect that part of Wilkinson's fear is that zealous Supreme Court review of constitutional rights will tempt some to use the power of the court to impose their favored policy agendas. No doubt he is right, but if the only antidote is to have the Supreme Court refuse to uphold the legitimate rights of people because some other justices would like to impose their own agendas would likley lead to an even more absurd outcome. The unwritten right to abortion would continue, the written right to bear arms would be ignored. I'm all for a humble judicial constitutionalism, but not one that is comatose

If only criminals would beat people to death with lobbyists. Then we could ban them as well. How can you really debate the meaning of the second amendment. It is being devalued and put down so the state can regain the monopoly on force. Gun control is more of the same moronic reactionary thinking. There is gun control in Mexico. There are hundreds of murders a day in Mexico. Ban corruption, not guns.

No, only a liberal would agree with Wilkenson. The abortion right is teased out of the "right to privacy." Where is the right to privacy in the constitution? Nowhere, it is teased out of several other amendments and the ideas of "natural liberty." Basically we have protections in our home and liberty in our persons, this leads to a right of privacy in all matters, and this gives women the right to terminate a pregnancy. Only an idiot could compare this reasoning to the Heller reasoning. The Heller reasoning is this: the constitution, with a preamble, asserts "the right of the people to keep and bear arms will not be infringed." The court took this to conclude that a law banning all handguns in D.C. is unconstitutional. This is a small leap from the text of the constitution. Roe is like leaping from the earth to the moon.

Disagreement over texts is not the issue. The right to an abortion was not derived from the text. The problem is that it was invented out of penumbras and emanations (seriously). I don't think Scalia had to conjur up penumbras to draw out a constitutional right to arms from the plain text of the constitution. Scalia is a textualist and he interprets the text, which includes settling textual disputes. Judicial constraint means not going beyond the text, or at least going beyond it as little as possible.

It is not a noteworthy article, except in the way that crime is noteworthy.


You forget the "text" of the 9th amendment which provides that individuals have rights other than those enumerated. The founders expressly stated they included the 9th so it could not be argued individuals only had the rights enumerated in the previous amendments. You can argue over the prudence of finding rights in the 9th, but you cannot claim it is unconstitutional to have additional unenumerated rights since the constitution provides that people do.

Steve: The right to an abortion is not drawn from the 9th amendment. That reasoning was experimented with and abandoned in earlier privacy arguments because even liberals thought you needed more to go on than the 9th amendment. The right to privacy is found in Due Process Liberty, not the 9th amendment.

Furthermore, any right retained by the people could be properly granted to their state government for regulation.
Therefore, if the right to abortion was retained by the people, which it was, they could pass state laws regulating it or not. It is rights that are specifically enumerated that are protected by the constitution rather than the normal operation of republican government.


If our Constitutional rights only exist to the extent that state legislatures don't decide to take them away, then they don't exist at all. If that's what the 9th Amendment says, then it says nothing at all.

Look, to paraphrase Marshall, this is a Constitution we're talking about here, not some rinky dink statute for the regulation of highway traffic. We're going to have disagreements about how far it goes. I think the so-called originalist view, that the Constitution only does what it says it does, nothing more, is a cramped view that would not have met with the approval of the drafters, particularly our Fourteenth Amendment rights. You should read that amendment sometime; the language is sweeping and categorical. It seems to me perfectly consistent to read a lot into it.

As to Scalia, anyone who can say that the Eleventh Amendment to bar citizens of a state from suing their own state is either an idiot, or not an originalist/textualist. I mean, if that's what the drafers wanted to say, they'd have said "nobody can sue a state unless it wants to be sued." That's clearly not what they said, as any reading of the text makes perfectly plain.

But enough beating up on originalists/textualists. Such small minds aren't really worth this much time.

And by the way, judicial activist is just another way of saying 'a judge who makes decisions I don't like.'

I've read the 14th a few times. It wasn't drafted by our founders. The view that the states had broad powers to regulate and limit rights, even those in the Bill of Rights was held by nearly every founder. It was just a matter of the people deciding to do such via their elected government. The Fourteenth Amendment has in effect incorporated the Bill of Rights, meaning that the states can no longer violate the rights enshrined in the declaration of independence. Judicial activism has two definitions: 1) overturning the legislature (ie people)--in that sense Heller would be activist. 2) reading beyond the text of the constitution (substantive due process, when the 14th says that rights can be taken away so long as procedural due process is followed.

Study up a bit.

Johann, I was thinking the same thing. Thanks for saying it.

I think I agree with Pete on the limits of the Wilkinson. And the comparison with Roe limps because Heller involved a federal law. The 9th amendment interpreted the way some do would give the Court virtually unlimited power to manufacture rights, as does the basically nominalist interpretation of the 14th amendment's "liberty" in Lawrence v. Texas. Was the 14th amendment understood originally to dramatically expand the scope of judicial review? Or mainly the power of Congress?

I taught Heller this semester.

Before I begin, however, a query: my impression was that both the majority and the dissenters simply assume that the quasi-federal nature of DC laws has nothing to do with the case. That is, it is assumed that the doctrine of 14th-amendment incoroporation of the Bill of Rights would apply, even if the law Heller overturned were a state one. Does anyone know how this works with DC law? With my edited version of Heller, I cannot now find a place where Scalia addresses this.

I dislike the confusion the term "activist" brings, but when I use it I follow Matt Franck's def. of activism: "wrongful use of judicial review." So, if this decision is a correct use of judicial review, it is not "activist."

Informed originalism knows that some cases are harder to decide by originalist principles than others. There may even be cases where the determination of the authoritative original intent becomes impossible. The meaning of the 2nd amendment, 20 million gun lovers to the contrary, is one of those more difficult parts of the Constitution to interp by originalism. But, mind you, "more difficult" does not mean impossible, and my judgment is that Scalia's argments, especially regarding the meanings of "bear" and "keep," carry the day. In cases like Roper v. Simmons, Lawrence v. Texas, pr Roe v. Wade the originalist arguments are decisive, slam-dunk, and anyone who reads Scalia's dissents on the first two with a basic acceptance of originalism is going to have to concede he is correct. Only die-hard living constitutionalists can read those dissents of Scalia and continue to deny he was right.

Heller, interestingly enough, is a place where the dissenters rely on originalist arguments. Oh, the hypocrisy! we might quite fairly charge, but it may also be a good sign, a sign that the deeper logic of judicial review is forcing their hand. The majority's originalist arguments are better than the dissenters, but I am willing to admit that it is a close call at times. Do read Stevens's dissent before dissmissing this out of hand.

There are three ways in which judicial traditionalists might feel queasy about the majority decision.

First, since it to some degree is a close call what the original intent was, one that reasonable minds (UNLIKE Roe, Roper, etc.) can disagree upon, one might prefer the court to say "tie goes to the runner." Christopher Wolfe defines the proper "moderate judicial review" as originalist, basically, in its INTERPRETATION, but also as cleaving to a doctrine of restraint in its UTILIZATION, so that "the doubt that calls for legislative deference is a doubt that persists at the end of a comprehensive effort to determine the compatibility of the law and the Const." You can see that Heller, if I've represented it correctly, MIGHT fall into that category.

Second, if I'm right that this is an incorporation case even though it is DC and not a state we're talking about here, then one has to ask: does staunch originalism require a rejection of incoroporation? A LOT at stake in how one answers that, a place where consistent originalism would reuqire us to rework a whole hell of a lot of current, I really don't know. This is really the only non-tendentious argument Posner produces: that a REAL orginalism would have to have the guts to overturn 1947's Adamson v. Calif., the big incorporation case.

Third, Scalia at a certain point argues that the Second Amendment is best understood, beyond the end of allowing a militia given by the prefatory clause, as protecting a more fundamental right to self-defense. Now that such a NATURAL right exists is ABC for anyone who's read Locke, (and I assume a non-Lockean defense of it via natural law is pretty ABC as well) and so obviously the founders had it in mind when they protected the stated right to keep and bear arms. Scalia does provide evidence of this. But notice the potential danger here--all the Constitution gives us is the "keep and bear arms," constitutional right. To assume that that really is a reference to a larger right of self-defense is at least distantly akin to assuming that there is a larger right of privacy implied by the Fourth, the Fifth, etc. Now Wilkinson, as some above have pointed out, is being quite hyperbolic and unfair to compare Heller with Roe, but I'd prefer there to be no possible comparison, however stretched and distant.

End of academic qualifications, etc., ...I do think the majority got it right, and soundly enough to pass on legislative deference. I do wish Scalia had not referred to the right to self-defense in the way he did. And I do think the problem presented by Adamson and the doctrine of incorporation is huge, and on that score I am open to changing my mind.

Carl in answer to your question. The court ducked the question of whether the 2nd Amendment is incorporated against the states via the 14th Amendment. I believe the NRA has filed suite against Chicago suburbs and San Fransico because they have gun laws similar to DC's former law. The court will eventually have to answer the incorporation isse in these cases.


Do amendments have less force if they weren't drafted by our "founders?" That's not how I read the Constitution, but obviously, if you follow me, you're free to disagree. At any rate, I think the drafters of the fourteenth were our founders; the country since the inferno of the early 1860s is a profoundly different place from the one that preceded it.

The fourteenth amendment can be read to do a heck of a lot more than simply incorporate the bill of rights. It makes American citizens of us all; we are one nation now. And phrases like "privileges and immunities," "due process" and "equal protection" can be plausibly read very broadly, Slaughterhouse Cases to the contrary notwithstanding.

Carl Scott,

When you write that judicial activism means "wrongful use of judicial review" you haven't really said anything; you haven't defined judicial activism, you've just turned the definitional argument away from that phrase and on to "wrongful." This is kick the can semantics, and not helpful. I can simply say "wrongful use of judicial review" is any use I don't like, and nothing's been accomplished. You want a Second Amendment that doesn't bolster Roe; that's a pretty bald preference. Can you back that up with anything, or is judicial review only not wrongful when you agree with it?

Johann, now you're just spouting ACORN propaganda. The Due Process Clause only protects fundalmental liberty interests. Traditionally this has been held to be only those rights historically found necessary for a civilized society. The Bill of rights is a good list of fundamental rights. If you go beyond that list, then you're just making crap up. That's the difference between Heller and Roe. Heller is on the list, Roe is made up crap, proved by the fact the the right to abortion, and privacy is nowhere in the constitution.

At the time of the founding and the Fourteenth Amendment, abortion was regulated by the states. This would indicate that the drafters of the Fourteenth Amendment did not believe that it prohibited abortion. (I never said that the Amendment had less weight than the original ones, my comments on the founders were directed toward your loose reading of the 9th amendment.) If you would like an 1870 interpretation of the 14th amendment, great; you'll find that it doesn't protect the right to an abortion. It sounds to me like you want to play the game of read the Fourteenth Amendment how you want to because the language is a broad interpretation of our common human aspirations. Fine, but realize that this may lead to constitutional rights for trees. Also realize that it could lead to a Conservative Supreme Court finding that a fetus deserves Due Process and therefore abortion is Unconstitutional. That is the danger of judicial review. If you broadly interpret the 14th, then the court will have the last word. If you keep it narrow, then the states and the legislatures will decide. That way you can live in California, and I can live in Texas, and we can both be happier.

Clint, do I have a right not to be waterboarded? Or is that "made up crap," too?

Johann, read the majority and read the dissents. Then we can talk...until then, it's not about the Constitution but just the usual partisan snipes. And apparently, my saying "The meaning of the 2nd amendment, 20 million gun lovers to the contrary, is one of those more difficult parts of the Constitution to interp by originalism," meant zilch to you.

For Heller, go to or, it's way long, but if you ignore all footnotes and the more prelimanry legal issues, the core of the majority and of the main dissent ammounts to about 20 pages.

Andrew, Eighth Amendment, cruel and unusual punishment, citizens would therefore be protected from waterboarding. Find me a right in the amendments that leads to the right to privacy/abortion and we'll talk. Next time come up w/a better hypo.

I did a quick text search of the entire Constitution for waterboarding... Oh man! It's not in there!!! You're right about abortion, too!!! What should I do? Maybe go to a year of law school like you?

andrew, you and John McCain may be right that waterboarding should never, ever, be allowed or contemplated. But skip the law school, and sit down with a book that might, just might, get you off your moral high horse. It's called the Gulag Archipelago, by Aleksandr Solzhenitsyn..I recommend the abridgment ed. by Ericson. In it, you'll learn what REAL torture is, among other things. Or, if you wish, read about what the civilized and republican (I'm not being ironic) French did in Algeria circa 1958...and notice again that the U.S. has done almost infinitely less in the current conflict.

Everyday patriots criticize their country, often vigorously, but never histrionically. And no wise man judges his country, or any other, from the standpoint of perfectionism.

(stepping down off moral high horse)

Carl: I never said that waterboarding was worse than, say, the iron maiden, did I? Obviously there are more atrocious torture methods in the world, but this is the United States, the greatest country of them all. Shouldn't we expect a little more from ourselves than France circa 1958? Not perfection, just not waterboarding.

And besides, that last remark was meant as a jab at young Clint. I was put off by his "pick a better hypo" comment.

Hmmm confusing jab.?? The drafters would have understood the text "cruel and unusual punishment" to preclude waterboarding citizens. They did not (drafters of original constitution or 14th amendment) understand their text to preclude abortion regulations. Therefore, hyperbole aside, your hypo carries no weight.

Are you Clint Leibolt?

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