Balkinization   |
Balkinization
Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts More on Heller
|
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.
Comments:
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
[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,".)
Great blog! I really love how it is easy on my eyes and the information are well written. I am wondering how I might be notified whenever a new post has been made. I have subscribed to your rss feed which really should do the trick! Have a nice day! Back Surgery Type
I have not much time to visit many websites. But today I found this site accidently. Village Resort Luxury Hotel Room
Post a Comment
|
Books by Balkinization Bloggers ![]() Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024) ![]() Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023) ![]() Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) ![]() Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) ![]() Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) ![]() Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). ![]() Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). ![]() Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) ![]() Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) ![]() Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) ![]() Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). ![]() Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) ![]() Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) ![]() Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) ![]() Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) ![]() Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) ![]() Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) ![]() Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) ![]() Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) ![]() Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) ![]() Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) ![]() Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) ![]() Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) ![]() Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) ![]() Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution ![]() Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) ![]() Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) ![]() John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) ![]() Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) ![]() Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) ![]() James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues ![]() Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) ![]() Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) ![]() Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) ![]() Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) ![]() Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) ![]() Jack M. Balkin, Living Originalism (Harvard University Press, 2011) ![]() Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) ![]() Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) ![]() Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) ![]() Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) ![]() Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) ![]() Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic ![]() Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) ![]() Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) ![]() Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) ![]() Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) ![]() Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) ![]() Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) ![]() Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) ![]() David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) ![]() Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) ![]() Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) ![]() Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) ![]() Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |