PHUTATORIUSSix months off news-cycle, George Will has decided to write about the
eerie parallels between the Supreme Court's
Heller decision, which announced a Second Amendment-based right to possession of a firearm, and
Roe v. Wade. Hard to figure the time lag, except that the obvious took a while to penetrate his consciousness (unlikely: Will is an insightful fellow), or maybe there's a provision in
The Conservative Writer's Rule Book by which one must allow a considerable waiting period to lapse before one can criticize a decision that the right wing
likes. Actually, as the column has it, a conservative Fourth Circuit judge made these points recently in a Court of Appeals decision, and that occasioned Will's writing. Maybe we'd have seen this column earlier if Will had read and credited the insights of folks on the left who saw through this nonsense on Day One.
Anyway, better late than never. Will covers the ground pretty well here, starting with (1) throwing open a whole new litigable subject matter for regulation by the federal courts; (2) making up federal rights out of whole cloth, with the Constitution serving more as guiding light than dictator; (3) showing up "originalism" to be, in Will's words, "no barrier to 'judicial subjectivity.'" Fine, fine, and fine.
But here's the thing, George: you missed a few spots. And you're just wildly off on some others. First, "originalism" isn't so much "the doctrine that the Constitution's text means precisely what those who wrote its words meant by them." That's "strict textualism." "Originalism" is, rather, that farce of judicial prosopopoeia pursuant to which a court takes on the collective persona of the Constitution's Framers and infuses their moral authority into a decision by declaring What The Old Boys Would Have Said about the Fourth Amendment automobile exception, or a judicial override procedure for a minor seeking an abortion, or what have you.
(When I think of "originalism," I like to think of the several scenes in Bill & Ted's Excellent Adventure in which great historical figures walk confusedly around late 20th century Southern California, trying to make sense of what they see. As much as I enjoyed this as a vehicle for comedy, it stuns me that bright people might embrace it as a preferred mode of constitutional interpretation — or that we can take those same people seriously when they presume to know how Madison et al. would feel about these tough modern-day questions.)
Will also misses some important differences between Heller and Roe. One is that far from "being silent" on the question, the Second Amendment did say something about a gun right. It's just not very clear what it was saying. Reasonable judges can disagree, it seems: in Heller the Court split 5-4 on whether the Amendment's "prefatory" clause, "A well regulated Militia, being necessary to the security of a free State," sets any limitations or conditions on the "operative" clause, "the right of the People to keep and bear arms shall not be infringed." (Incidentally, only one of these is a "clause," by any reasonable grammarian's sense of the term; jurists read that term much more expansively.) And if you count the dozens of judges who passed on the question over the last seventy years, you'll actually see the weight of authority supporting the view that the right is cabined to militia-based uses, and that the Second Amendment supports no individual right. Which brings me to my second point of distinction between Heller and Roe: both announced a federal right in the course of invalidating a law, but only one — Heller — also rejected a big, serious hunk of established Supreme Court law. So when we're evaluating the competing claims of "judicial activism here," we might be inclined to take into account now-Chief Justice Roberts's assurances, at the point of nomination, that he would respect settled Supreme Court precedent, and that his vision of the Court's work was a narrow one that would not throw open the doors of the federal courts to massive overhauls of federal, state, and local regulatory schemes on so flimsy a platform as the protection of individual rights. George, I would love to have seen more on this.
Will laments the inconsistency between the conservative Justices' positions on rights they do and don't like — as do I — but we're at sixes and sevens, I think, on how that inconsistency ought to be resolved. It deeply troubles Will that federal rights might be expanding. He sees decisions announcing federal rights as cases that "traduce[] federalism," and he is bothered by the notion of courts delving into the policy minutiae that of necessity follow from protecting these rights — e.g., trigger locks (for guns), waiting periods (for guns and abortions), clinic buffers, and so on. None of this stuff is covered in the Constitution, he groans. Let's consider Will's complaints.
Federalism. — It's not federal constitutional rights that threaten federalism; it's federal regulation. The Bill of Rights describes the bare-minimum baseline rights that are to be afforded to every American, regardless of his state of origin. States are free to confer constitution-level prerogatives above and beyond those that the U.S Constitution supplies. The principles of federalism (i.e., the apportionment of powers and responsibilities between the federal government and the state government) that the Constitution advances are set forth elsewhere — in the enumerated powers granted to Congress, in the Supremacy Clause, and in the Tenth Amendment (part of the Bill of Rights, I'll admit, but specifically addressed to define the prerogatives of States, not the People, as the BOR's other provisions are). Sure, in theory it treads on states' rights to require trial by jury, and to protect freedom of speech, but these rights limit the federal government's powers and prerogratives, too, and generally in the same measure. Let's not confuse the two separate power relationships here: government v. people and federal government v. state government.
If I were inclined to be generous (I'm still deciding), I would suggest that what Will would endorse is a very narrowly circumscribed set of federal rights, with state constitutions stepping to the plate to develop "ancillary" state-specific rights (as several have done, for example, with same-sex marriage). In this way the states can serve as "laboratories of democracy" both by regulation and by extension of rights. This might have been a reasonable proposition centuries ago, but the genie is out of the bottle now. The U.S. Constitution is the primary vehicle for protecting individual rights. It's crowded most everyone else out of business, and it's the best (if not the only) game in town. This is an artifact of history: it happened because the states weren't doing their jobs. The states were enslaving people, and after the federal Constitution barred that practice, they found new and clever ways to oppress the same people. One can't seriously cry "federalism" to defeat a federal constitutional right nowadays. States' rights was code for racism forty years ago. That code has been cracked.
Micromanagement. — Ask a conservative about our court system, and by the time he's done talking he'll have you believe that judges are petty tyrants who actively seek out ways to knock down our doors and manage our day-to-day lives. And after every four stanzas of that ballad, there comes the same old refrain: "None of this is in the Constitution/They're making it all up." But let's consider reality here: judges don't create cases. They don't look for controversies to adjudicate. Parties (and their lawyers) bring lawsuits. Certainly the Constitution could not anticipate questions like triggers locks and clinic buffers. Of course they're "silent" on these points. A system that is flexible and adaptive, one that calls for the action of governments to be reviewed against the Constitution at the point of a controversy, is only reasonable. Otherwise we are expecting the Framers to have anticipated everything. It simply can't be the case that the government can freely engage in any action not expressly ruled out by the Constitution's text.
But Will knows this, and his point of attack is sharper, more subtle. And wrong. He contends that the problem isn't that the Constitution doesn't talk about trigger locks and clinic buffers — it's that it never said anything (at all, in the case of abortion, or clear, in the case of guns) about these rights. It's because the Court is manufacturing rights that it then gets bogged down considering all the ridiculous detail that comes with governments subsequently trying to erode/destroy the same rights. But the degree of detail-mongering is no greater for these "controversial" rights than it is for the several other rights that are generally accepted as adequately expressed in the Constitution. Consider the Fourth Amendment right to be free from unreasonable searches and seizures. The Court has been asked to consider the constitutionality of border searches of files on laptop computers, of flyovers of a defendant's property. They have to consider whether it's a "seizure" when a cop smashes into a perp's car during a police chase, or whether a warrant ought to be required to search a car. Details, details. Does the right against self-incrimination extend to a breathalyzer test? A DNA test? Does the First Amendment protect computer code? Detail, details. That's not how "controversial" or "stealth Constitution" rights work. That's how all rights work.
George would rather we all had fewer rights, so judges could get out of our lives. I'm not sold on that proposition. I'd like to see the inconsistencies in judicial philosophy resolved in favor of rights. Aren't rights a good thing, even if it takes judges to midwife them into existence?
