Balkinization  

Friday, June 27, 2008

Parallel universes about what counts as "scholarly analysis"

Sandy Levinson

David Bernstein notes his agreement, in a Volokh Conspiracy post entitled "The Scholarly Nature of Heller," with Jim Lindgren that "the opinions in Heller are very scholarly, especially with reference to historical sources." He goes on to say that this is a vast improvement over the use of historical materials by earlier courts, citing Justice Douglas's opinion in Gray v. Sanders (1963), where he
wrote, without further elaboration, that the political philosophy of 'the Gettysburg Address, Declaration of Independence, 15th, 17th, and 19th Amendments 'can mean only one thing–one person, one vote.' One can level many criticisms at the modern Court, especially its self-aggrandizing tendency to think that it is not only the last word, but the only word, on constitutional interpretation. But the scholarly quality of the opinions has never been higher.

Among other things, this may demonstrate that there are parallel universes with regard to identifying something as manifesting "scholarly" quality.

My question is this, perhaps directed especially to legal academics: If a student had submitted either the Scalia or the Stevens opinion, or, even more to the point, if a job applicant had submitted as a writing sample either of the opinions, what would your reaction be? Would you possibly regard either one as an example of "scholarly quality" rather than tendentious brief writing? I would not, and I find it literally amazing that a competent scholar, as Prof. Bernstein most certainly is, would issue such praise for the handiwork of the Court (even if one agrees, as I do, with his critique of Justice Douglas's ridiculous "only one thing" assertion).


Comments:

I think you're directing your question to the wrong audience. You should be asking it of historians or at least legal historians. Perhaps Prof. Dudziak would like to weigh in.

JMHO, but you and Prof. Graber are more accurately describing the "history" in the opinions than Prof. Bernstein is.
 

Sandy,
Neither Scalia nor Stevens have written a scholarly historical analysis and more importantly neither have they written a scholarly legal analysis. As Breyer notes, since the majority seem to agree that no right -- even the right to have a gun -- is absolute, it was incumbent on the majority to explain why the DC statutes violated some level of scrutiny (and perhaps it did). Scalia's claim that the statutes fail any level of scutiny (rational, strict, etc) is a dis-service to constitutional scholarship. My sense is that we are beginning to see the end of originalism of any kind. Scalia's opinion is certainly an example of "living constitutionalism," dressed up as originalism. Even if the inquiry is relevant, there simply is no one public meaning, and certainly no single intent.
 

"is absolute, it was incumbent on the majority to explain why the DC statutes violated some level of scrutiny"

The reasoning here is not complicated. If the DC law didn't violate the 2nd amendment, no possible law could, therefore it fails any standard of review which doesn't amount to implicitly repealing the amendment.

One must interpret clauses of a constitution so that they have SOME effect, under SOME circumstances.
 

Scholarly? Scholarly in the sense Kerr thought Yoo was impressive since he used legalistic sounding words, perhaps.

They liked the idea the two sides focused on original history. One might say the fact they did a bad job of it in various respects was less important.

Another thing. One person over at VC noted even Stevens said that an individual right was involved. This seemed to impress him. But, what sort of individual right?

Seemed to be a member of a state militia that is open to tons of regulation. This is "individual" in some sense but not quite the way they like, I think.
 

"The reasoning here is not complicated. If the DC law didn't violate the 2nd amendment, no possible law could..."
This is an assertion, not reasoning; and it is not correct. The mere fact (assuming Scalia's claim is correct), that the 2nd Amendment protects the right of self defense in the home by no means suggests that that right can't be regulated in some fashion. Breyer's point is apposite here - the majority does not announce a standard or a method by which gun laws may be regulated even though the majority concedes that some regulation is permissible.
 

"If the DC law didn't violate the 2nd amendment, no possible law could, therefore it fails any standard of review which doesn't amount to implicitly repealing the amendment."

man, i expect a better quality of partisan hackery from you.

look, here is a a law that would violate the 2nd amendment:

the federal govt hereby declares that the militia of new york state is disbanded and no longer in operation. all weapons in the possession of the new york state militia, also known as the new york national guard, and any of its officers, enlistees or agents, are hereby declared contraband and are to be turned in to federal authorities under penalty of etc. etc.

the historical record shows that most of the colony-level antecedents for the 2A were directed to preserving each state's right to maintain a militia. the record of the anti-federalist writers such as brutus, as well as the federalists like webster, show that the real controversy was over the possibility of a federal standing army that would supersede the state level militias.

that was, for most of its advocates if not all, the point of the 2A, and a federal law that disbanded a state militia would "amount to implicitly repealing" it.

so it is not true that "if the dc law didn't amount to a repeal, then no law would." the dc law did *not* amount to a repeal, and i have just outlined a law that would.

your argument here just never even gets off the ground.
 

"the historical record shows that most of the colony-level antecedents for the 2A were directed to preserving each state's right to maintain a militia. the record of the anti-federalist writers such as brutus, as well as the federalists like webster, show that the real controversy was over the possibility of a federal standing army that would supersede the state level militias."

Problem with that theory (Scalia briefly mentions this, without citations to authority) is this. Yes, there were framers worried about that (or in Stevens' formation, that the Feds would disarm the militia by failing to provide arms or a duty to get them).

BUT those worries were not adresssed by the 2A. The VA ratification, from which Madison largely worked, had a proto-2A and separately a provision that the States might arm and organize their militias should Congress neglect to do so. So (1) when that was a concern, the framers were perfectly capable of redressing it in clear language and (2) they saw it as something separate from the 2A.

Madison left the militia-arming clause out of his draft of the BoR.

When in the First Senate, the VA delegation proposed to add it to the BoR, they got voted down.

Pretty hard to argue that was the secret meaning of the 2A.
 

Dave, your theory is perfectly logical, but so is this one:

Congress left out the other provision because they all understood that the language (specifically the opening clause) already covered it -- the extra wording would have been redundant.

BTW, I'm not commenting on the meaning of the 2A per se, I'm just noting the ambiguities involved in this sort of effort to reconstruct the past.
 

My sense is that we are beginning to see the end of originalism of any kind. Scalia's opinion is certainly an example of "living constitutionalism," dressed up as originalism.

I'm sure the analogy has been made before, but Scalia's interpretative model might be described as 'Colonial Williamsburgism'.
 

That's a brilliant analogy. I've never seen it.
 

I'm beginning to sense a lot of liberals thinking, "If the parts of the Constitution I don't like are going to be enforced, too, maybe we should just abandon this whole constitution thing as a bad deal."

Look, the Constitution and Bill of Rights weren't written by Chomsky or Saul Cornell. You're just going to have to accept that there are parts of the Constitution which legitimately mean things you don't like. Just as there are parts libertarians don't like, parts conservatives don't like.

If you can't accept that, you're no better than the tax protesters who claim their paycheck isn't really "income" subject to the 16th amendment. No better than those loons who go on and on about whether the flag in the court has a gold fringe on it.

Real world constitutions never make any faction in a country entirely happy. This is one of the parts that don't make you happy. If that's enough for you to demand that the courts not uphold it, you're going to find there are parts YOU like that make a lot of other people unhappy, and they're not going to be terribly impressed when you claim that's different.

Suck it up and stop whining. You don't like what the 2nd amendment says, repeal it.
 

Brett, I think your advice might be just as well or better directed at those conservatives who are constantly telling everyone that liberals are "just making up" rights.
 

gold fringe on the flag? that sounds like a highly entertaining controversy.

as for the rest of your rant, you are way off base. i've owned a handgun for over 20 years, like many other liberals. i have no objection to individual ownership, nor would i object to an amendment that did explicitly exempt individual ownership from govt. regulation.

but i do strongly object to slipshod, partisan, and results-oriented interpretation of the constitution.

especially when it calls itself 'originalism'.
 

Juxtaposing two of Brett's comments--

Real world constitutions never make any faction in a country entirely happy. and You don't like what the 2nd amendment says, repeal it.

As Prof. Levinson has noted, real world constitutions in most countries make the latter statement sound less like the classic 'sore winner'.

Except that Brett's target is wrong. the amount of exegesis surrounding Heller demonstrates that neither side likes 'what the 2nd amendment says'.

And yet constitutions must be interpreted, even in ways that suggest originalism-as-practised to be bunk. The obvious followup: were the 2nd Amdt. a case, it would be remanded; were it a contract, it would be redrafted. Instead, it will remain in its inglorious position as

Mark Field: I waive any royalties on the term, and content myself with the amusing mental image of Antonin Scalia in period dress leaving the Williamsburg courthouse, stepping onto a carriage, and riding the few blocks to where his SUV is parked for the commute home.
 

i do strongly object to slipshod, partisan, and results-oriented interpretation of the constitution.

Come on now. While there are a few boo-boos, Stevens' dissent wasn't that bad. Moreover, I'm sure Nixon would not have nominated a Democrat. But it does seem the intent of the dissent was to preserve the status quo.

If not, exactly what right does Stevens think the Second Amendment? The right of individuals to serve in a militia? Shouldn't that have been written in a much simpler sentence? That's currently being discussed on volokh
 

Suck it up and stop whining. You don't like what the 2nd amendment says, repeal it.

The ironic thing here is that the majority of the participants on this blog seem to be both classifiable as liberal and supporters of an individual right to bear arms that is derived from the second amendment.

It's not the result of Heller that's at question here, it's the process by which the answer was reached. If you don't like long drawn out post-game analysis, that's fine (I usually change the channel after a game myself), but don't knee-jerk to the "liberals hate guns/the second amendment" stereotype. 2+2 and 2^2 may give you the same answer, but if you do the latter and call it addition, there's a problem.
 

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