Bench Memos

Re: Let the Flak Begin

So far I think Mr. Sullivan has not suffered any solid hits from the flak.  Judge Wilkinson, on whom he partly relies, has come in for a lot of grief for comparing Heller to Roe.  But while he may have pushed the comparison here and there, his thesis compares the two cases on these four dimensions (quoted by Sullivan from the first page of Wilkinson’s article): that like Roe, Heller evinces “an absence of a commitment to textualism; a willingness to embark on a complex endeavor that will require fine-tuning over many years of litigation; a failure to respect legislative judgments; and a rejection of the principles of federalism.”  Recitations of all the ways in which Roe is (obviously) worse than Heller do not meet the argument.

And I wonder a little at the limitations Ramesh imposes on what originalism is capable of.  To the contrary, I think that originalism about the judicial function has a good deal to say about what one does when the historical record leaves a question of the Constitution’s meaning ambiguous.  That is, originalism properly understood includes “a principle of restraint in hard cases.”  In Heller, both Justice Scalia and Justice Stevens rely on history.  For my part, I think Justice Stevens has the better account of it, and Scalia’s history is disappointingly unpersuasive.  But suppose we call it a draw, as Sullivan does.  Then, drawing upon everything we know about the founding generation’s understanding of the judicial power, we would have to say that in the doubtful case the judges ought not to rule against the validity of a statute.  That strikes me as a thoroughly originalist principle.