Commenting on my exchange with Jack Balkin, our own Jonathan Adler writes over at the Volokh Conspiracy:
I would suggest that a reasonable threshold test of the seriousness of a given individual’s avowed theory of constitutional interpretation is whether the theory produces any results which the individual finds highly objectionable. If not, there may be reason to suspect that the theory is just a dressed up iteration of the individual’s policy preferences.
So we might coin Adler’s Axiom: he whose constitutional and political conclusions are always congruent has a suspect constitutional approach. It’s a good test. Not the last word, but a good threshold, as Jonathan says.
I hear tell that Jack Balkin thinks the Second Amendment protects a justiciable individual right to own firearms, good against states as well as the federal government–and that this runs contrary to his political preferences. Interestingly enough, I take the opposing view on both questions. I disagree with the newfangled Second Amendment scholarship that calls itself the “Standard Model,” and would, if I were a judge, dismiss all challenges to gun control statutes that base themselves on the Second Amendment. But I oppose gun control, and have the most personal reasons for doing so.
This is an easy one, though, in some respects, and might cost each of us little. Gun control is an issue (so far) firmly in the grip of legislatures, and neither Balkin nor I need worry very much about whether a court will adopt the view that we think is true but regrettable. Well, maybe Balkin should worry more. If the D.C. Circuit ruling stands, one of America’s worst gun-control laws will be eliminated. I rather doubt that will happen. For the Constitution’s sake, I hope I’m right.
For the record, here’s my short list, off the top of my head, of true-but-regrettable constitutional conclusions:
Oops. That last one doesn’t belong on the list because I also think that Truman was smart to do it.
Readers will notice a pattern. All my “gee, I’m stuck with that one” conclusions involve criticisms on my part of the Court improperly using its power to void the acts of other authorities. It’s hard for me to think of instances of the improper disuse of the Court’s power. (Oh wait, I have one . . . from 1934.)