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.”  

Most Popular


Kamala Harris Runs for Queen

I’m going to let you in on a secret about the 2020 presidential contest: Unless unforeseen circumstances lead to a true wave election, the legislative stakes will be extremely low. The odds are heavily stacked against Democrats’ retaking the Senate, and that means that even if a Democrat wins the White House, ... Read More

What We’ve Learned about Jussie Smollett

It’s been a few weeks since March 26, when all charges against Jussie Smollett were dropped and the actor declared that his version of events had been proven correct. How’s that going? Smollett’s celebrity defenders have gone quiet. His publicists and lawyers are dodging reporters. The @StandwithJussie ... Read More
Energy & Environment

The Climate Trap for Democrats

The more the climate debate changes, the more it stays the same. Polls show that the public is worried about climate change, but that doesn’t mean that it is any more ready to bear any burden or pay any price to combat it. If President Donald Trump claws his way to victory again in Pennsylvania and the ... Read More
White House

Sarah Sanders to Resign at End of June

Sarah Huckabee Sanders will resign from her position as White House press secretary at the end of the month, President Trump announced on Twitter Thursday afternoon. Sanders, the daughter of former Arkansas governor Mike Huckabee, succeeded Sean ... Read More
Politics & Policy

But Why Is Guatemala Hungry?

I really, really don’t want to be on the “Nicolas Kristof Wrote Something Dumb” beat, but, Jiminy Cricket! Kristof has taken a trip to Guatemala, with a young woman from Arizona State University in tow. “My annual win-a-trip journey,” he writes. Reporting from Guatemala, he discovers that many ... Read More
Politics & Policy

On Painting Air Force One

And so it has come to this. Two oil tankers were just attacked in the Gulf of Oman, presumably by Iran. The United States and China are facing off in a confrontation that is about far more than trade. The southern border remains anarchic and uncontrolled. And Congress is asking: “Can I get the icon in ... Read More