Posted by David Bernstein:
Judge Wilkinson on Roe and Heller:
http://volokh.com/archives/archive_2008_10_19-2008_10_25.shtml#1224641624
"In both Roe and Heller," [1]Judge Wilkinson wrote, "the court
claimed to find in the Constitution the authority to overrule the
wishes of the people's representatives. In both cases, the
constitutional text did not clearly mandate the result, and the
court had discretion to decide the case either way."
With all due respect to Judge Wilkinson, an excellent, thoughtful
judge, this is a terrible analogy, and one that would get a poor grade
from me if made on a constitutional law exam. Let's compare the
constitutional texts at issue. Roe: "nor shall any state deprive any
person of life, liberty, or property, without due process of law." The
text doesn't say anything whatsoever about abortion, and the idea that
abortion was a protected constitutional right was new to American
history, with no suggestion that anyone before the 1960s, much less
the Framers of the 14th Amendment, thought that the liberty provision
of the Due Process Clause protected such a right against the states'
police power. Heller: "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." The right to keep and bear arms is
right there in the text, and there is a long American tradition, going
back to the English common law, stressing the importance of the right
to bear arms, including (though not uncontroversially) in the
constitutional context.
True, "the constitutional text did not clearly mandate the result" in
Heller, but that doesn't make Roe an apt analogy, as you can say that
about almost ANY case protecting a constitutional right.
A much better analogy would be the Supreme Court's modern First
Amendment jurisprudence. "Congress shall make no law ... abridging the
freedom of speech" doesn't dictate the result in any given case,
because what constitutes "the freedom of speech" is not self-defining.
And, if anything, the Court has stretched "the freedom of speech" far
further from its historical moorings than Heller did with regard to
the right to bear arms. But in neither Heller nor modern First
Amendment cases did the Court simply make up a new right out of whole
cloth, as one can reasonably argue that the Court did in Roe.
References
1. http://www.nytimes.com/2008/10/21/washington/21guns.html?em
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