Bench Memos

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Re: The Court’s Business


Robert, to paraphrase Inigo Montoya in The Princess Bride, I do not think the Constitution means what you think it means.  Here are the difficulties I see in what you say below:

1.  The Second Amendment’s “right to bear arms is actually in the Constitution,” unlike some other so-called legal principles we might name.  Yes it is.  But it does not necessarily follow, from the fact of something’s being in the Constitution, that judicial enforcement of that something is a given.

2.  “The Bill of Rights is a limit on government.”  Yes, it is.  But even limits on government are not ipso facto matters of judicial enforcement.  The Tenth Amendment is the classic example, as John Marshall made plain in McCulloch v. Maryland.

3.  Ever “since Marbury v. Madison the courts have been charged with enforcing that limit through judicial review.”  Since Marbury v. Madison had nothing to do with the Bill of Rights, this is difficult to say with any confidence.  And since the phrase “judicial review” is entirely a twentieth-century coinage for the power we’re considering, I would proceed with great caution where Marbury is concerned.  But what Marbury assuredly is not, is a license for the Supreme Court to “enforce” every jot and tittle of the Constitution.  This is the case, after all, that first enunciates the “political question” doctrine–using the phrase itself, whereas the phrase “judicial review” never appears in the case.

The questions with respect to every part of the Constitution that is brought before the bar of the Court are two: what does it mean, and what is its relation to the judicial power of Article III?  In fact, the second of these questions should come first, since a conclusion that the judicial power cannot properly be brought to bear obviates the necessity for judges even to answer the first question.  The pandemic fever of judicial supremacy has persuaded countless judges, lawyers, and scholars that the second question is hardly even a question, with the result that the first question is assumed to be the only one.  And so the disease of judicial legislation rages unchecked–as it seems ready to do again in the Heller case.


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