The Magazine

Wilkinson and Posner, Dissenting

Two conservative judges challenge Justice Scalia.

Dec 15, 2008, Vol. 14, No. 13 • By ADAM J. WHITE
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Even before their Election Day drubbing, conservatives had begun to reexamine their positions on a variety of issues. Conspicuously absent from the intramural debate, however, has been "originalism"--the theory that judges should decide constitutional cases in accordance with their best estimate of the original public meaning of the constitutional provision at issue. While positions on health care reform or foreign policy may be subject to revision, originalism faces little challenge among conservatives.

Recent articles by two Republican-appointed judges, however, identify a fault line along which intra-conservative debate could arise. Each focuses on the Supreme Court's recent decision in District of Columbia v. Heller, where the Court struck down the District of Columbia's draconian regulation of handguns by a vote of 5-4.

At the crux of Heller was the Second Amendment's curious construction: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." Undertaking an originalist review of the Second Amendment's text and history, Justice Antonin Scalia's opinion for the Court concluded that the "well regulated Militia clause" was merely a "prefatory clause," which could not limit the amendment's subsequent "operative clause," and that the D.C. handgun ban violated the right protected by the Second Amendment. In dissent, Justice John Paul Stevens conducted his own review of the Second Amendment's text and history and reached diametrically opposite conclusions.

Most conservatives celebrated Heller, but Judge J. Harvie Wilkinson manifestly did not. Appointed to the U.S. Court of Appeals for the Fourth Circuit by President Reagan, he long has been regarded as one of the most respected conservatives on the federal bench; he was short-listed for a Supreme Court appointment in 2005. His critical essay, forthcoming in the Virginia Law Review, bestows upon Scalia's opinion the most scathing condemnation known to conservatives: comparison to Roe v. Wade.

Rejecting Scalia's originalist analysis, Wilkinson asserts that "the constitutional text did not clearly mandate the result, and the Court had discretion to decide the case either way"; he calls Scalia's analysis "an exposé of original intent as a theory no less subject to judicial subjectivity and endless argumentation [than] any other."

Wilkinson argues that the Heller and Roe decisions share four fundamental flaws: Each (1) manufactured controversial rights not clearly established by the text of the Constitution, (2) threw the courts into a "political thicket" where they will "decide contentious questions without clear constitutional guidance," (3) failed to allow legislatures to make the difficult factual or value-laden judgment calls for which they are uniquely well suited, and (4) disregarded the value of reserving such contentious issues to state and local authorities rather than deciding them at the national level.

Wilkinson's specific criticisms are open to challenge. In arguing that Heller settles the constitutional question at the national level, for example, Wilkinson assumes, with little justification, that the Court will apply Heller against state laws, and not merely against federal laws.

But Wilkinson's specific criticisms are overshadowed by a broader criticism of originalism per se: that Scalia's exclusive reliance on originalism disregards a host of other longstanding conservative values, such as "textualism, self-restraint, separation of powers and federalism as well." Heller, he argues, "has left only originalism as the foundation of conservative jurisprudence. A set of reasonable tenets each providing a separate check on judicial activism has now been replaced by a singular focus on original understanding."

The second major conservative criticism of Heller is found in Judge Richard Posner's "In Defense of Looseness," published in the New Republic. Posner, appointed to the U.S. Court of Appeals for the Seventh Circuit by President Reagan, is a longstanding critic of originalism, preferring instead a version of legal "pragmatism" rooted in the jurisprudence of Justice Oliver Wendell Holmes Jr.

Like Wilkinson, Posner offers a narrow criticism and a broad one. Narrowly, Posner criticizes Scalia's originalist analysis in Heller, arguing that a truly "originalist" analysis--unlike what Posner sees as Scalia's "pretense of engaging in originalism interpretation" to achieve political ends--would have led the Court to affirm the D.C. handgun ban, not invalidate it.