Bench Memos

Reply to Matt

Well, I don’t see how Judge Wilkinson can fairly conclude that the “constitutional question is so close” and that “conventional interpretive methods do not begin to decisively resolve the issue” without doing a lot more careful analysis than he appears to have done. 

More broadly (and not in reply to anything Matt has said), I think that the general equivalence that Wilkinson posits between Roe and Heller is reckless, as is much of his rhetoric (e.g., “the methodological similarities between Roe and Heller are large”, Roe and Heller “now together cast a long shadow over contemporary constitutional law”).  Some pages in, where it will receive little attention, Wilkinson himself recognizes that “Roe involved the more brazen assertion of judicial authority” and that “Heller differs from Roe in important respects,” but even there he understates the differences.  For example, Wilkinson states that “the text of the Constitution alludes to a right ‘to keep and bear arms,’ but it does not so much as mention a right to abortion.”  (Emphasis added.)  But the Second Amendment is not a mere allusion; it provides expressly that “the right of the people to keep and bear Arms, shall not be infringed.”  Similarly, it’s quite an understatement for Wilkinson to say that “the cases use history in markedly different ways.”  Most importantly, even Wilkinson alleges that Scalia’s position is eminently plausible (something that cannot be said of Roe); he contends only that it’s not “unambiguously command[ed].” 

In short, we have, on the one hand, in Heller what Wilkinson himself regards as an eminently plausible interpretation of actual constitutional text, and, on the other, the wild misruling in Roe.  Yet somehow Wilkinson can bring himself to say only that “Heller was marginally more justified than Roe.”  

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