Showing papers by "Nelson Lund published in 2008"
Journal Article•
TL;DR: In this article, a distinguished federal judge maintains that true conservatives are required to substitute principles of judicial restraint for an inquiry into the original meaning of the Constitution, and argues that the Second Amendment decision in District of Columbia v. Heller is an activist decision just like Roe v. Wade.
Abstract: Writing in the Virginia Law Review, a distinguished federal judge maintains that true conservatives are required to substitute principles of judicial restraint for an inquiry into the original meaning of the Constitution. Accordingly, argues J. Harvie Wilkinson, III, the Supreme Court's Second Amendment decision in District of Columbia v. Heller is an activist decision just like Roe v. Wade: "[B]oth cases found judicially enforceable substantive rights only ambiguously rooted in the Constitution's text." In this response, we challenge his critique.Part I shows that Judge Wilkinson's analogy between Roe and Heller is untenable. The right of the people to keep and bear arms is in the Constitution, and the right to abortion is not. Contrary to Judge Wilkinson, the genuine conservative critique of Roe is based on the Constitution, not on judicial "values." Judge Wilkinson, moreover, does not show that Heller's interpretation of the Second Amendment is refuted, or even called into serious question, by Justice Stevens' dissenting opinion. Part II shows that Judge Wilkinson himself does not adhere to the "neutral principle" that he claims to derive from "judicial values." Under the principle of judicial restraint that he articulates, many now-reviled statutes, including the Jim Crow laws of the twentieth century, should have been upheld by the courts. Judge Wilkinson does not accept the consequences of his own supposedly neutral principle, preferring instead to endorse or condemn Supreme Court decisions solely on the basis of his policy preferences. That is not judicial restraint. It is judicial lawlessness. Available at SSRN: http://ssrn.com/abstract=1309714 Language: en
3 citations
Posted Content•
TL;DR: The treatment of Miller appears to be part of a larger political strategy in which the Court displayed a calculated faint-heartedness toward the original meaning of the Second Amendment as discussed by the authors, and the treatment of the Miller case appears to have been motivated by a political strategy.
Abstract: District of Columbia v. Heller concluded, on the basis of a detailed analysis of the original meaning of the Second Amendment, that American citizens have a constitutional right to keep and bear arms for personal self defense, and held that this entails at least the right to keep a handgun in the home and to render it operable for the purpose of immediate self defense. The Court rejected a theory - unknown to the founding generation but accepted by most of the lower federal courts during the twentieth century - under which the Second Amendment protects only a right of state governments to maintain military organizations, or perhaps a right of individuals to have weapons only while serving in such organizations.In this case, the Justices were confronted with only one significant Supreme Court precedent, an eight page opinion in United States v. Miller. Surprisingly, Heller contains an embarrassingly and pointlessly fictional statement of the procedural facts of the Miller case. More importantly, the Court does quote from Miller, and the Court does interpret the Miller opinion, but in doing so it distorts the holding beyond all recognition.This brief essay analyzes Heller's treatment of Miller. The interpretations of the Second Amendment in the two cases are irreconcilable. There was no legal need for the Heller Court to treat Miller as a binding precedent, and no legal excuse for pretending that Miller's holding was consistent with the interpretation of the Constitution that Heller rightly adopted. The treatment of Miller appears to be part of a larger political strategy in which the Court displayed a calculated faint-heartedness toward the original meaning of the Second Amendment. We can only hope that future Courts will treat Heller in a more lawyerly manner than Heller treated Miller.
3 citations
Posted Content•
TL;DR: In this article, a distinguished federal judge maintains that true conservatives are required to substitute principles of judicial restraint for an inquiry into the original meaning of the Constitution, and argues that the Second Amendment decision in District of Columbia v. Heller is an activist decision just like Roe v. Wade.
Abstract: Writing in the Virginia Law Review, a distinguished federal judge maintains that true conservatives are required to substitute principles of judicial restraint for an inquiry into the original meaning of the Constitution. Accordingly, argues J. Harvie Wilkinson, III, the Supreme Court's Second Amendment decision in District of Columbia v. Heller is an activist decision just like Roe v. Wade: "[B]oth cases found judicially enforceable substantive rights only ambiguously rooted in the Constitution's text." In this response, we challenge his critique.Part I shows that Judge Wilkinson's analogy between Roe and Heller is untenable. The right of the people to keep and bear arms is in the Constitution, and the right to abortion is not. Contrary to Judge Wilkinson, the genuine conservative critique of Roe is based on the Constitution, not on judicial "values." Judge Wilkinson, moreover, does not show that Heller's interpretation of the Second Amendment is refuted, or even called into serious question, by Justice Stevens' dissenting opinion. Part II shows that Judge Wilkinson himself does not adhere to the "neutral principle" that he claims to derive from "judicial values." Under the principle of judicial restraint that he articulates, many now-reviled statutes, including the Jim Crow laws of the twentieth century, should have been upheld by the courts. Judge Wilkinson does not accept the consequences of his own supposedly neutral principle, preferring instead to endorse or condemn Supreme Court decisions solely on the basis of his policy preferences. That is not judicial restraint. It is judicial lawlessness.
2 citations
Posted Content•
TL;DR: More than half a century after Brown v. Board of Education, the Supreme Court is closely and bitterly divided about the meaning of that decision, and about the interpretation of the Equal Protection Clause to which it appealed.
Abstract: More than half a century after Brown v. Board of Education, the Supreme Court is closely and bitterly divided about the meaning of that decision, and about the meaning of the Equal Protection Clause to which it appealed. The first major decision of the Roberts Court, Parents Involved in Community Schools v. Seattle School Dist. No. 1, took a small step away from a constitutional vision that permits racial discrimination by the government whenever courts believe that the effects on society will be salutary.With respect to non-remedial affirmative discrimination, remarkably little has changed since the Bakke decision in 1978.At that time four members of the Court would have allowed the government virtually unfettered discretion to practice what they regarded as benign forms of racial discrimination. Three decades later, four members of the Court take essentially the same position, and will clearly not be deterred by any of the contrary precedents that have built up during that period.In 1978, four Justices read the Civil Rights Act of 1964 to forbid racial discrimination without regard to the motive for the challenged policy. Today, four members of the Court would give the Fourteenth Amendment (and perhaps also the Civil Rights Act) a roughly similar interpretation, though it is not clear how far they would go in challenging existing precedent.In 1978, Justice Powell's middle position was that racial discrimination practiced for judicially approved diversity purposes is permissible, but that care must be taken to limit its reach and obscure the identity of its victims. Today's swing Justice has expressly endorsed Powell's legal formula, although Kennedy's application of this approach seems less latitudinarian than the one suggested in Powell's Bakke opinion.How much longer will this equilibrium remain stable? We seem to be one vote away from significant progress toward a relatively robust enforcement of antidiscrimination principles. We are also but one vote away from the opposite approach, which would endorse virtually any kind of discriminatory laws that a court believes were "enacted in good faith for the promotion of the public good, and not for the annoyance or oppression of a particular class." It is hard to believe that the Court won't shift in one direction or the other fairly soon. But one might have said the same thing in 1978.
2 citations