The Spectacle Blog

Dionne vs. Originalism

By on 6.27.08 | 10:48AM

E.J. Dionne makes an amateurish attempt to find hypocrisy among conservative justices in the Heller ruling:

Conservative justices claim that they defer to local authority. Not in this case. They insist that political questions should be decided by elected officials. Not in this case. They argue that they pay careful attention to the precise words of the Constitution. Not in this case.

It's true that conservative judicial philosophy is deferential to local governments when the Constitution doesn't specifically grant a given right to the people or forbid government from making a certain law. But it is totally different when the Constitution specifically prohibits government from regulating a given behavior. Just as the District of Columbia doesn't have the authority to censor what Dionne writes in his Washington Post column because of the First Amendment, the Second Amendment guarantees my individual right to keep and bear arms as a citizen of the District.

And it's hard to see how Dionne could have even glanced at Scalia's opinion and still concluded that it doesn't pay close attention to the precise words in the Constitution.

As Randy Barnett puts it in an excellent, far more illuminating op-ed in the Wall Street Journal:

Justice Scalia's opinion is exemplary for the way it was reasoned. It will be studied by law professors and students for years to come. It is the clearest, most careful interpretation of the meaning of the Constitution ever to be adopted by a majority of the Supreme Court. Justice Scalia begins with the text, and carefully parses the grammatical relationship of the "operative clause" identifying "the right to keep and bear arms" to the "prefatory clause" about the importance of a "well-regulated militia." Only then does he consider the extensive evidence of original meaning that has been uncovered by scholars over the past 20 years - evidence that was presented to the Court in numerous "friends of the court" briefs.
Send to Kindle

Like this Article

Print this Article

Print Article