With the addition of Neil Gorsuch, the Supreme Court once again has two talented originalists. But two is not five, and the record so far has been that originalism’s influence on the Court has been more symbolic than consequential. In other words, the opinions that have been most orthodox in their originalism have not made much difference to America’s political life. That is not of course to criticize these opinions. Originalists should focus on reasoning, not results. But the absence of more consequential opinions does suggest that Court is not yet an originalist Court.
Originalism can be symbolic in several ways. First, a jurisprudence of a provision can become pervasively originalist and yet be largely symbolic if that provision is relatively unimportant. That is probably the case with the Confrontation Clause where Crawford v. Washington and Giles v. California are quintessentially originalist opinions. But while the Confrontation Clause is of course important to some defendants, it does not change crime control or even criminal procedure except at the margin. This kind of symbolism might be termed the “Originalism of Small Things.”
Another form of symbolic originalism is for the Court to make a thorough going originalist decision, but not to follow up on its important implications.
Richard A. Posner has been called his generation’s “Tenth Justice,” a judge like Learned Hand or Henry Friendly whose prolific intellect and erudite jurisprudence rank him in quality and influence among members of the Supreme Court despite never having sat alongside them. Readers of Posner’s new book, Reflections on Judging, may both concur in his ranking as tenth and be grateful that he stayed that way.
Patrick Garry’s essay “The Constitution’s Structural Limits on Power Should Be the Focus of the Bill of Rights” contains many valuable insights. In particular, it re-affirms the proposition – lost for many years but perhaps gaining some new currency – that the so-called “structural” provisions of the Constitution are, and were intended to be, not merely matters of mundane and perhaps outdated institutional design but core protections of individual liberty. Further, it rightly emphasizes that the antifederalist-inspired Bill of Rights amendments work together with the Constitution’s structural provisions to limit government and promote individual liberty by reducing the federal government’s…
There is much to commend Professor Garry’s essay. He is eminently correct in saying that the Constitution contemplated a limited government. Whether it adhered to a “limited government model” is a different issue. What is more than curious, however, is Professor Garry’s statement that the “the overall scheme of the original Constitution” is primarily concerned with…
The revolution of 1787-1791 overthrew a constitution that strictly limited the federal government in favor of one with general welfare and necessary and proper clauses that allowed the federal government to absorb state powers over time. It also tossed out the dogma of separation of powers in favor of a more sophisticated balance of powers.…
An article tucked away on the back page of my local newspaper caught my attention: the Library of Congress has become the latest federal agency to acquire a SWAT team. The Library of Congress? We know that only members of Congress and high level executive department officials have check-out privileges, so it is unlikely that SWAT teams will be used to recall overdue books. What then? Is there evidence of a planned terrorist plot to destroy the Madison papers and thereby our memory of constitutional government? Perhaps an assault by Taliban negotiators on some of the still-secret Kissinger papers to learn how Le Duc Tho outwitted the U.S. in the Paris Peace accords?
The President has held two news conferences in three days commenting on the coming wave of gun control initiatives. His presentation has been emotional and properly reflects the anguish that we all feel for the victims of gun crime. It also has been a dazzling display of sophistry. I say that because the President is smart. And if he were not smart, I would say that, so far as his gun ban proposals, his comments were a profound display of ignorance.
Responding to the run on guns precipitated by the preliminary proposals floated by his team, the President said that the motivation must be mainly financial. Callous capitalism, that other great evil, had prompted unnamed villains to gin up fear of gun bans in order to make profit. The truth is far more basic.
Everyone here is seeking the best route to personal security. Gun people calculate that within the window of imminent threats government is incompetent and they must protect themselves. From the rhetoric, you would think that gun owners or at least NRA members do not have families and children that they love and want to protect. That of course is absurd.
These people realize the limits of government and have prepared to protect themselves. Private firearms are central to their approach, and that drives the recent run on guns (and those following Obama’s two elections). If you believe you will lose something essential to one of your core needs, you will scour the market and buy up what you can. It does not require blandishments from profiteers.
At the risk of stating some obvious things, I want to respond to Bob Costas’ recent comment about the failings of “our current gun culture”. Costas endorsed without reservation, indeed just read from Jason Whitlock’s critique of the murder suicide deaths of NFL player Jovan Belcher and his wife.
“Our current gun culture, “Whitlock wrote, “ensures that more and more domestic disputes will end in the ultimate tragedy and that more convenience-store confrontations over loud music coming from a car will leave more teenage boys bloodied and dead.”
“Handguns do not enhance our safety. They exacerbate our flaws, tempt us to escalate arguments, and bait us into embracing confrontation rather than avoiding it. In the coming days, Jovan Belcher’s actions, and their possible connection to football will be analyzed. Who knows?”
“But here,” wrote Jason Whitlock,” is what I believe. If Jovan Belcher didn’t possess a gun, he and Kasandra Perkins would both be alive today.”
Retired Justice John Paul Stevens was recently in the news commenting on the right to keep and bear arms that was affirmed in the Heller decision, where he dissented. Speaking at the Brady Center to Prevent Gun Violence, Stevens said he is surprised Congress has largely sidestepped policy debates over “the damage that is done by the unregulated use of firearms.” Referencing shootings in Colorado and Wisconsin Stevens lamented, “when an issue is a subject both of such importance and such widespread discussion, the fact that Congress doesn’t address it, I find mind-boggling, to tell you the truth.”
The developing standard of review under the Second Amendment holds important lessons about the judicial administration of individual rights. When the Supreme Court affirmed the individual right to arms in District of Columbia v. Heller (2008) it suggested among other things that the Second Amendment protects firearms in “common use”. This invoked the longstanding view that militia as referenced in the prefatory clause, equals the body of the people, bearing their own private arms in common use at the time. I and others speculated about the boundaries of this nascent standard. But it seemed to allow relatively objective treatment of a core category of questions.