Posted by Orin Kerr:
Posner on Heller: Is it All Politics?
http://volokh.com/archives/archive_2008_08_10-2008_08_16.shtml#1218600363
The New Republic has posted [1]an interesting essay by Richard Posner
criticizing Justice Scalia's opinion in DC v. Heller. According to
Posner, Heller "is questionable in both method and result, and it is
evidence that the Supreme Court, in deciding constitutional cases,
exercises a freewheeling discretion strongly flavored with ideology."
A taste:
The true springs of the Heller decision must be sought elsewhere
than in the majority's declared commitment to originalism. The idea
behind the decision--it is not articulated, of course, and perhaps
not even consciously held--may simply be that turnabout is fair
play. Liberal judges have used loose construction to expand
constitutional prohibitions beyond any reasonable construal of
original meaning; and now it is the conservatives' turn.
I cannot discern any principles in the pattern of the Supreme
Court's constitutional interpretations. The absence of principles
supports the hypothesis that ideology drives decision in cases in
which liberal and conservative values collide. If loose
construction produces a conservative limitation on government, most
conservatives will support it and most liberals will oppose it; and
if it produces a liberal limitation on government, most liberals
and conservatives will switch sides.
Posner is ridiculously wrong, of course: The fundamental truth of
constitutional law is that Justices who agree with me are divining the
true Constitution, while the rest are political hacks twisting the
document to suit their policy preferences. Thus, my side is always
principled.
Thanks to Ed Whelan for the link. Ed also has his own comments on
Posner's review over at [2]Bench Memos.
References
1.
http://www.tnr.com/booksarts/story.html?id=d2f38db8-3c8a-477e-bd0a-5bd56de0e7c0
2.
http://bench.nationalreview.com/post/?q=Y2VjZWY3YWE1ZTgyYmVmZTBhM2NhMWZjNmEyNzlkNmU=
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