Balkinization  

Friday, June 27, 2008

More on Heller

Mark Tushnet

I want to make two points about Heller. The first elaborates on a point Sandy Levinson made. Both Justice Scalia’s opinion for the Court and Justice Stevens’s dissent devote a great deal of attention to the original understanding – or, as it turns out, understandings – of the Second Amendment’s terms. Both opinions look as if they are interested in history. Both, though, demonstrate why lawyers and judges shouldn’t play historian. In their capacity as judges, the justices have to award a decision to one or the other side. They share the natural human tendency to exaggerate the case that can be made for the side they ultimately favor. So, both Justice Scalia and Justice Stevens assert – laughably to a real historian – that the Second Amendment had only one meaning at the framing, and that that meaning was for all practical purposes universally shared. Even more, Justice Scalia asserts that that meaning was preserved unchanged from 1791 through the late nineteenth century.

Real historians are comfortable with complexity and with the co-existence at any one time of contradictory understandings of constitutional concepts, and the real lesson of the dueling opinions in the Heller case is that there simply wasn’t a single, universally shared understanding of the Second Amendment’s meaning in 1791: There were at least two widely shared meanings, and what we deserve, but didn’t get, is some explanation of why one rather than the other should guide our interpretation today. And the idea that constitutional understandings are so stable that what people in the 1860s thought the Second Amendment meant can help us figure out what (other) people thought seventy years earlier is belied by something we really do know – that within a decade after the adoption of the First Amendment the general understanding of what it meant changed dramatically (roughly, but adequate for present purposes, from a ban only on prior restraints on publication with no implications for punishment after the event, to a ban on some substantive regulations such as prohibitions of criticism of the government). If the understanding of the First Amendment’s meaning changed so rapidly, why not the same for the Second, over an even longer period?

Finally, the exchange between the majority and Justice Breyer, speaking for four dissenters, reveals an interesting and persistent disagreement between the justices. Three years ago, writing to uphold the display of the Ten Commandments on the state house grounds in Texas, Justice Breyer argued that constitutional analysis required that judges exercise “legal judgment.” He reiterated that point in his opinion in the Medellin case earlier this Term, and once again in his dissent in Heller. In Medellin and Heller his colleagues in the majority derided his argument as a “judge empowering” method of unguided interest-balancing. This isn’t the place to engage in a long analysis of what Justice Breyer might mean by “legal judgment,” but I think it’s reasonable to think that he has something else in mind. (I hope to develop the longer analysis in an article to be published next year.)

For now, it may be worth observing the rhetorical difference between Justice Breyer’s description of his job as one requiring him to exercise “legal judgment,” and Chief Justice Roberts’s description of the job as that of an umpire calling balls and strikes. As to the latter – and with implications for the question of judicial empowerment – it seems to me striking, so to speak, that, as one might put it, when Chief Justice Roberts calls the balls and strikes, it turns out that the home team’s pitchers have a truly amazing capacity to get the ball in the strike zone while the visitors’ pitchers quite frequently throw wildly. And, we really should try to figure why exactly it’s a bad thing for people we call judges to exercise judgment.

Comments:

Excellent points about the history. I agree entirely.
 

The Chief Justice's analogy of his job on the court to "calling balls and strikes" reminds me of an earlier Justice Roberts' view of constitutional interpreation in U. S. v. Butler (1936), which is to "lay the article of the Constitution, which is involved beside the statute which is challenged and to decide whether the latter squares with the former." It appears to be mechanical, but as we all know it is almost entirely discretionary and highly political.

About the only time a judge acts as an umpire and "call balls and strikes" is when a trial judge makes rulings on evidence.

Meanwhile, Tushnet's comments about how lawyers and judges view history ---that it has one "meaning" that is fixed in cement---and how they use it to advance an argument or judicial "opinion" is especialy appropriate to this gun-control case. It is what "real historians" call "law office history" -- and they don't mean it to be a compliment.

dah
 

Over at Obsidian Wings, publius has some related thoughts.
 

[Judges] share the natural human tendency to exaggerate the case that can be made for the side they ultimately favor.

But judges should overcome that tendency, and not just when they attempt to do history. James Boyd White has argued that judges should not write opinions as if they were briefs. They should give full due to opposing arguments and acknowledge when a case is close, and explain honestly why they choose the result they choose, admitting the hesitations that they have (or should have). That would be to treat us, their readers, with respect.
 

Well, if Breyer is defending "legal judgment", which I understand to be the idea that you have to read things in context, understand that many constitutional provisions set out only general principles and invite judges to make decisions that are consistent with the principles (even if they would not have been imagined by the framers of the Constitution), and that among those sorts of decisions are decisions about limitations on the principle in light of competing interests, I agree. And if this is what Scalia is criticizing, he would be wrong.

But in the Heller case, Breyer really does seem to be advocating, in practice, something broader than that which approaches free-form balancing where we can take a right away entirely because of competing interests. Really, if you can ban handguns and render long guns unusable in the home, the right to keep and bear arms means nothing at all. And Scalia's criticism of that makes perfect sense to me.
 

That this case was a knotty matter seems a given, to me. Personally I am glad for its 'moderate' outcome, even if the primary opinion's author was Justice Scalia. The three facets of the historical background provided, aggregating first Stevens' then Breyer's dissents only enhance the effect of the ambiguousness of what it means to grow as a nation and a society.

I think Prof. Tushnet's emphasis on the poles of Breyer's judgement concept and Roberts' purported disinterested layer of abstraction also constitutes a perceptive examination of the dynamic of this court's decisionmaking.

It occurred to me that Roberts' remark derived from sports jargon likely was a political soundbite customized by his trainers before he had to enter the actual hearing in Senate Judiciary Committee. At that time there was quite a storm about suppressing 'liberal' initiatives of some senators, and I took Roberts' use of the image simply as a refusal to talk specifics. Samuel Alito's nomination hearing in that committee was a replay of the same sphinxlike strategy for preserving the mystique of the court and the region of the political spectrum from which both Alito and Roberts hailed.
 

it seems to me striking, so to speak, that, as one might put it, when Chief Justice Roberts calls the balls and strikes, it turns out that the home team’s pitchers have a truly amazing capacity to get the ball in the strike zone while the visitors’ pitchers quite frequently throw wildly.

Because maybe the Constitution favors the home team. You're assuming that the Constitution itself doesn't have any ideological bias or leaning, and that therefore any ideological leaning in decisions of the Court must reflect a judicial bias. But that's mistaken. The Constitution's a political document like any other. It's not some sort of empty, value-neutral vessel amenable to whatever ideology one happens to subscribe to. It was crafted, for the most part, by people with a strong preference for limited government, limited notions of individual rights (not to mention that the rights they did favor often vary from the ones we're concerned about today), very little interest in equality as a strong, substantive value as opposed to a formalist guarantee, and so on. Now, of course there are theories that say judges can replace the values of the framers with more popular, contemporary values, and they may be good theories, but if you're doing originalist strike-calling, which is what Roberts claims to be doing, you're naturally going to end up with a lot of conservative outcomes.
 

tray:

The Constitution certainly contains ideological content, but it isn't nearly as libertarian/conservative as you think it is.

What your analysis really leaves out is the Civil War Amendments. They were enacted specifically to give the federal government vastly more power to guarantee equality to previously disenfranchised and oppressed groups. And the fact of the matter is that the Court has neutered those powers in various ways while upholding other portions of the intentions of the framers.

The actual truth is that almost EVERYONE interprets the Constitution in a manner to serve their own ideological preferences. Some people just pretend not to.
 

Legislators exercise judgement by balancing the various interests of the citizenry in enacting law.

Judges merely apply law.

If Justice Breyer wants to act like a legislator, perhaps he should run for office.

Meanwhile, I do not think it is overstating the case to argue that Breyer's "active liberty" represents a clear danger to the entire concept of the Bill of Rights - which was to limit government power and carve out a breathing space of liberty for the citizenry into which legislators in Congress (and those self appointed ones on the Court ) may not enter.

Justice Breyer is exactly what the Anti-Federalists feared when they demanded that the basic rights of Americans be guaranteed in writing rather than relying upon the good faith ability of the government to respect its boundaries. Even so, we came within one justice of losing a basic right which was guaranteed in writing.
 

Real historians are comfortable with complexity and with the co-existence at any one time of contradictory understandings of constitutional concepts, and the real lesson of the dueling opinions in the Heller case is that there simply wasn’t a single, universally shared understanding of the Second Amendment’s meaning in 1791

Scalia was not acting as an historian seeking the contradictory understandings of the drafters and ratifiers of the Constitution. Indeed, he expressly repudiated that approach in the majority opinion. Rather, Scalia was simply interpreting the text of the Constitution by using the original popular meaning of its words and phrases and then applying some basic principles of grammar.
 

Meanwhile, I do not think it is overstating the case to argue that Breyer's "active liberty" represents a clear danger to the entire concept of the Bill of Rights - which was to limit government power and carve out a breathing space of liberty for the citizenry into which legislators in Congress (and those self appointed ones on the Court ) may not enter.

Now now, Bart. Someday I do hope to write about the fact that Breyer really does seem to believe way too deeply in deferring to experts as opposed to popular sentiment. It clouds his judgment on issues like the Sentencing Guidelines and issues in tort law that touch on law and economics.

But "clear danger to the entire concept of the Bill of Rights"? Somehow, the Bill of Rights has survived Holmes' realism, Frankfurter's minimalism, Warren's politically-influenced judging, and all sorts of other justices who had rather ideosyncratic methods of interpretation. The only thing that will kill the Bill of Rights is if the judicial power to enforce it is ever stripped away. And that, I might add, is something that people on YOUR side of the aisle have proposed, not something the Steve Breyers of the world support.
 

If "real history" is always ambiguous and multi-valent, what does that mean for the whole exercise of originalism? 6-8 weeks ago there was a piece here about semantic content of the Constitution, which the author maintained had a fixed meaning at the time the document was uttered. But if the relevant factor is how those words were understood at the adoption, the content of the debate around the words rather than the words themselves are the relevant text. So we are left with legal history which, like legal statistics or legal medicine, includes some elements of the real thing but these elements are only being used in a tendentious manner to support one's desired outcome.
 

If "real history" is always ambiguous and multi-valent, what does that mean for the whole exercise of originalism?

In jurisprudence? That it's bunk. Attractive bunk, as the ever-tedious Bart proves, but bunk nonetheless.

Publius is on the mark at ObWi, but to reiterate what I wrote earlier, an interpretative model that relies on something resembling historical analysis, while excluding the possibility of ambiguity and ambivalence, is best described as 'dishonest'.
 

that there simply wasn’t a single, universally shared understanding of the Second Amendment’s meaning in 1791

There simply isn't a single, universally shared understanding of the Second Amendment's meaning in 1791 in 2008, This is evident from the Bogus brief, which heroically tries to persuade the reader that the framers used coded language and subtle context clues that make seemingly pro-individual rights statements actually mean the opposite of their plain meaning. In fact, under the Bogus treatment, black often becomes white, or at least cream. Three examples:

Self-Preservation does not equal Self-Defense
“Indeed, a publick allowance under due restraints, of the natural right of resistance and self preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.”
William Blackstone Commentaries *139. Notwithstanding the reference to "self-preservation," the passage cannot be construed to assert an unregulated private right of self-defense.

The right to defend oneself is not an individual right
More intriguing are the clauses stating the purposes for which arms may be borne: ... “For the defence of themselves and the state" (Pennsylvania, Art. XIII). Although the Pennsylvania clause appears [to bear upon a private right] two considerations render this reading improbable...

State constitutional provisions were not limits on state power
Referring to the above state declarations of the right to keep and bear arms, the Bogus brief goes on to say In only two states (Pennsylvania in 1776, Massachusetts in 1780) were [the declarations of rights] made part of the actual [state] constitutions. These declarations operated not as legally binding commands, but rather as statements of ... common-law protections.

(This may be one of a very few Supreme Court briefs to start a sentence with "More intriguing,".)
 

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