E.J. Dionne fulminates against the
Heller decision, charging that "the judicial right
regularly succumbs to the temptation to legislate from the bench.
They fall in line behind whatever fashions political conservatism
is promoting." Dionne says that the Court should have shown
deference to precedent and local elected officials. The majority's
failure to do so, he argues, shows that originalism is a sham
designed to promote a right-wing political agenda.
Of course, an originalist reading of the Constitution requires
both judicial restraint and a willingness to overturn
unconstitutional laws (and unconstitutional past court decisions)
depending on the constitutional issue under consideration. No
coherent body of constitutional thought that accepts judicial
review calls for overturning or upholding existing laws all the
time. And Scalia's interpretation of the Second
Amendment is far more persuasive than Dionne's cartoonish one. But
most importantly, Dionne's own column demonstrates the situational
constitutionalism he decries: When the Court second-guesses elected
officials on Guantanamo Bay, an area where he disagrees with said
officials, that is "a defense of constitutional rights." When they
second-guess elected officials he does agree with, restraint and
deference are called for.
In fairness, judicial activism and situational constitutionalism
can be found both on the left and the right. Many people interpret
the Constitution in ways that conveniently line up with their own
policy preferences. But Dionne's column filled with pro-gun control
cliches doesn't prove Heller is really an example of this
trend. Nor does it reveal him to be someone with much standing to
make such an argument.
topics:
Constitution, Law, Conservatism
