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Bench Memos

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To Anthony Dick, I will reply only half-facetiously that a very great many supposed conundrums in constitutional law “are simpler than they actually are,” and that the search for a “robust theory” of constitutional interpretation, with near-magical regularity, produces results the theorist would like.  Our law schools are thickly populated with folks who want first to produce “indeterminacy” in order to supply “determinacy” afterward via judges who are pliant and/or ambitious.  It is very nearly the furthest thing from the truth that “every single provision of the Constitution is hazy, at least around the edges.”  For interpretive method?  Read Blackstone, the repository of received wisdom on legal reasoning for the founding generation.  It won’t tell you what “theory” the Constitution is built on, but it will tell you how the legal minds were furnished that did the building.

Mr. Dick asked about particular provisions.  As for the Fourth Amendment, I would begin by clearing away the exclusionary rule and the “incorporation” that applies it to the states.  Right away the scale of the interpretive problem is reduced by about 95%.  Then can we talk?  I think we’d find that Congress legitimately has as large a role in “enforcing” the Fourth Amendment (a restriction on the executive, after all) as the judiciary has.

As for the Second Amendment, these are interesting questions all.  But I would refer those to legislatures too, because I think, as I have said here before, that D.C. v. Heller was a serious error.  In fact, if “small catastrophe” is a useful concept, the Heller case qualifies, in my book.  It promises an endless vista of government by judiciary.  If it is “ill-timed” to say so on the eve of the Sotomayor hearings, so be it.  But I doubt the Obama administration and the Senate Democrats will find my utility goes very far.



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