Today marks the anniversary of D.C. v. Heller, last year’s Supreme Court decision that struck down the most restrictive handgun ban in the country. The ruling gave conservatives a reason to celebrate, but it also highlighted a mounting tension in conservative legal thought.
Conservatives have for the last several decades advocated a strong version of judicial restraint, motivated in large part by their (entirely justifiable) backlash against Roe v. Wade. They have argued that judges should exercise humility and defer to elected legislators, who are not only more accountable to the people but also better suited to tailor policy solutions to particular problems. But Heller has joined a growing field of cases causing some conservatives to rethink the wisdom of this approach.
Spurred by issues related to racial discrimination (Ricci v. DeStefano), campaign-finance reform (Citizens United v. FEC), gun rights (D.C. v. Heller), eminent domain (Kelo v. New London), the fairness doctrine, and recent lawless takeovers of some of the nation’s largest corporations and financial institutions, segments of the Right are acquiring a new appreciation for the role an assertive judiciary might have in safeguarding individual rights and enforcing constitutional limits on government power. If anything, this trend on the Right seems poised to accelerate at a time when the judiciary leans more conservative than it has in decades, and Congress and the presidency are united in pursuing the most radical expansion of domestic federal authority since the New Deal.
For conservatives and libertarians advocating a strong judicial push-back against the accelerating abuses of government, the question is whether this can be done in a way that is faithful to the original meaning of the Constitution and that does not open the door to judicial policymaking, with the attendant abuses of Roe and other cases that create unfounded new rights and impose judicial will in the place of constitutional law. (One way to avoid the follies of Roe is for courts to restrain themselves from enforcing rights; another way is to start enforcing the right type of rights.)
The key is to develop a comprehensive vision of substantive constitutional meaning that can be applied robustly and aggressively in accordance with the classical liberal principles of the American founding, to the extent they can be fairly found(either implicitly or explicitly) in the Constitution. If this can be accomplished, an assertive judiciary might be not only justifiable but deeply desirable, as long as it operates on the properly constitutional conception of rights, liberties, and limited government. And of course, the judiciary does not have to bear the entire burden of this endeavor, as conservatives should press the point that Congress has its own independent duty of constitutional fidelity, even on issues where judicial review is not appropriate.
I think we can look forward to much more spirited intra-conservative controversy on this topic in the next few years, as nicely foreshadowed this week by Ramesh’s excellent New York Times article and the fallout therefrom.