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.
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