Unraveling Judicial Restraint: Guns, Abortion, and the Faux Conservatism of J. Harvie Wilkinson III, by Nelson Lund & David B. Kopel
December 1, 2008
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.
Saturday, January 3, 2009
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Of Guns, Abortions, and the Unraveling Rule of Law. By J. Harvie Wilkinson III, United States Court of Appeals for the Fourth Circuit
ReplyDeleteVirginia Law Review (Forthcoming), September 11, 2008
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1265118
Abstract/Excerpts:
Conservatives across the nation are celebrating. This past Term, in District of Columbia v. Heller, the Supreme Court held for the first time in the nation's history that the Second Amendment protects an individual right, unrelated to military service, to keep and bear arms.
I am unable to join in the jubilation. Heller represents a triumph for conservative lawyers. But it also represents a failure - the Court's failure to adhere to a conservative judicial methodology in reaching its decision. In fact, Heller encourages Americans to do what conservative jurists warned for years they should not do: bypass the ballot and seek to press their political agenda in the courts.
In this Essay, I compare Heller to another Supreme Court opinion, Roe v. Wade. The analogy seems unlikely; Roe is the opinion perhaps most disliked by conservatives, while many of those same critics are roundly praising Heller. And yet the comparison is apt. In a number of important ways, the Roe and Heller Courts are guilty of the same sins: “an absence of a commitment to textualism; a willingness to embark on a complex endeavor that will require fine-tuning over many years of litigation; a failure to respect legislative judgments; and a rejection of principles of federalism.” Like Roe, Wilkinson asserts that Heller represents “an act of judicial aggrandizement” that takes power from the political branches of government and gives it to the judicial branch.