Convictions : 2d amendment

What?

Rosa Brooks — Thu, 26 Jun 2008 15:48:00 GMT

Adam, do you mean to tell me I still can't hunt in Rock Creek Park? And I can't go on homosexual romps there, either? What's the point of having a Constitution if it's not going to give me any rights? So, fine, if I run down a deer, I'm keeping my venison for myself. Scalia can't have any. Neither can you.

Hooray, Now We Can Go Hunting

Rosa Brooks — Thu, 26 Jun 2008 14:43:00 GMT

... in Rock Creek Park! At last! (See the Supreme Court's decision in District of Columbia v. Heller, striking down the D.C. ban on handguns.) When I bag my first D.C. deer with my handgun, I will send a shoulder of venison to Justice Scalia in grateful admiration. If I manage to take out any muggers—or bystanders caught in the crossfire—I will send him their carcasses as well.

Guest poster Richard Schragger on externalist versus internalist views of the Constitution

Dahlia Lithwick — Fri, 21 Mar 2008 21:19:00 GMT

Richard Schragger is another Slate contributor who teaches at UVA law school. He sent in this email in an effort to clarify where you and I differ Jack.

In his post concerning the “living Constitution” Jack takes Dahlia to task for her naiveté – how can a “living constitutionalist” believe that constitutional law-making is anything other than a mixture of constitutional law and constitutional politics (with the latter more dominant than the former)? This explosion of the law/politics divide is too all-encompassing—and it doesn’t give us much traction on the important question—which is: What does the Constitution require? Jack offers an externalist perspective on constitutional change and calls it the "living constitution" -- but what he is offering is a description of how political/historical forces shape courts and other institutions of government – an account that may or may not be accurate but is, in any case, not what lots of opponents of originalism mean when they speak of the “living constitution.” Jack’s description also doesn't answer the question of whether the Court is actually engaged in making law. What I think Dahlia cares about (or, more accurately, what I care about) is the Court from an internalist perspective: We think that the Constitution is law, that law has content, and that legal doctrine has to be justified by an actual theory or account of the Constitution, the rights it contains, and how those rights apply through time.

Guest poster James Ryan on the influence of social movements on the courts

Dahlia Lithwick — Fri, 21 Mar 2008 19:55:00 GMT

I’ve been getting lots of interesting emails about my conversation with Jack about the proper role of social moments in constitutional courts so I thought I’d share some of the best. James Ryan teaches at the University of Virginia and has written for Slate. He writes:

I wonder if what really bothers you is the difference between well-heeled interest groups, who should be able to do just fine in the legislature, versus social groups that are traditionally disadvantaged in the legislative process. Seems like you could accept that social groups can and should help shape the Court's agenda but believe, ala Ely and political process theory, that there's no reason for the Court to overturn the legislative process when it disadvantages social groups that can and often do just fine in the legislative arena, as in the NRA. The Court might want to take a closer look when groups that are routinely disadvantaged ask for their help. E.g., you can make the argument that the Court should pay more attention to the NAACP than the NRA.

About that “Progressive Constitutional” Thing

Deborah N. Pearlstein — Fri, 21 Mar 2008 17:19:00 GMT

With growing appreciation of Jack and Dahlia (and growing bewilderment at how any of us will keep up with our day jobs in a post-Convictions world), let me offer a few thoughts in response to Jack's post on the Second Amendment and more broadly on constitutional interpretation by "progressive constitutionalists."

Jack's of course right that we should all know a lot more about the framers (and framing) of the 14^th Amendment. Count me in. I also couldn't agree more with the general sentiment I take Jack to be expressing that those who continue to assert vigorous state rights-type arguments (in various contexts, most ridiculously perhaps when it comes to voting rights) are simply missing the reality that their side lost the Civil War. Even on the more specific point, I would be willing to defer on grounds of comparative historical illiteracy to Jack's account that one of the things the 14^th Amendment framers had in mind in passing the amendment was to make sure, I take it his historical argument would lead him to say to the Heller Court, that citizens would be able to carry guns with them pretty much anywhere, anyplace, for any reason. For such is the result at least traditional strict scrutiny of regulation of a fundamental right would most likely bring.

But it is that last point that brings me back to the question my earlier post meant to be asking - namely, that however terribly inadequate (Charles Black said), ahistorical (as you would say), and otherwise laden with "baggage" (as Chief Justice Roberts would say) the Court's fundamental rights jurisprudence has been in the past ~150 years, my naïve stare decisis-related assumption had been that those decided cases are entitled to at least some measure of "interpretive weight" as against the statements of the no-doubt-far-more-enlightened views of Senator Howard. Of course it would've been better had Slaughterhouse been rightly (or even plausibly) decided, and we all hadn't wandered off for the past century and a half down the less-than-perfect substantive due process road, and the associated imperfect road along which we incorporated some (but not all) of the Bill of Rights against the states. But alas, that is the legal road we have traveled. It is one thing for progressives to explore anew the heretofore untapped scope of the privileges of immunities clause. It seems to me another thing to ignore, in any case in which any of that along-the-way jurisprudence seems inconvenient, everything else that might inform the modern Court's understanding of what makes a right fundamental.

I like my living constituion medium rare

Dahlia Lithwick — Fri, 21 Mar 2008 14:27:00 GMT

Jack, thanks for your thoughtful post on the drawbacks of living constitutionalism. I don’t imagine you really believe that the version of living constitutionalism you’ve unspooled -- if it’s living constitutionalism at all – is one I’d embrace. That’s judicial tyranny. My objection in Heller was not to “political and social movement guided constitutional development” but to political and social movement dominated constitutional development as the courts snoozed. I don’t imagine anyone genuinely believes the courts could or would ignore political forces.

I’m actually rather fond of the unwashed masses. But what I didn’t see happening in Heller was the kind of serious constitutional conversation between the unwashed and the courts that we both favor. What I did see was the individual right to bear arms “arise full blown” from the head of Chief Justice John Roberts.

It’s not clear to me that we differ about “living constitutionalism” at all. Both originalists and living constitutionalists can embrace judicial restraint. I simply think the constitution has real meaning, and that courts play a role beyond merely carrying water for ~~special interest groups~~ social forces. That’s why I am most looking forward to your answer to the question Eric and I posed earlier this week. If it’s really all just politics, why do we need constitutional courts at all?

An unoriginal thought about Heller

Diane Marie Amann — Fri, 21 Mar 2008 00:30:00 GMT

Musing on the oral argument in Heller, which I just found time to digest (check out the read-along-picture-book-like function at Oyez.org):

Anyone else struck by the oddity of an originalist focus with regard to the existence vel non of an individual right, followed by a 20th century fast-forward with regard to application? On the 1st point, nearly all (though not all) Justices spent the 1st third of the argument plumbing what words in the 2d Amendment used to mean, as far back as 1689. Then, at p. 40, Justice Antonin Scalia: "And yet we've never held that simply because it was pre-existing and that there were some regulations upon it, that we would not use strict scrutiny. We certainly apply it to freedom of speech." Litigants and Justices alike -- with the notable exception of Chief Justice John G. Roberts, Jr. (p. 44) -- seemed to accept that some "level of scrutiny" applied.

No great thoughts here about what the Court ought to do, but was struck by this juxtaposition in 1 case of discourse from 2 eras.