Posted by Jonathan Adler:
Wilkinson's Restraint:
http://volokh.com/archives/archive_2008_10_19-2008_10_25.shtml#1224680962
[1]Judge Wilkinson's critique of the Supreme Court's Heller decision,
[2]referenced by David below, should not be a surprise. Judge
Wilkinson has always been uncomfortable invalidating legislative acts
on constitutional grounds. To Judge Wilkinson, the proper exercise of
"judicial restraint" requires an extreme reluctance to invalidate
legislative acts. Unless compelled by precedent, Judge Wilkinson has
typically preferred to defer to the "political" branches. He made this
explicit in his concurrence to the en banc Fourth Circuit's decision
in [3]Brzonkala v. VPI, in which the court struck down portions of the
Violence Against Women Act for exceeding the scope of the interstate
commerce clause. In his view, the case was "especially difficult"
because "it pits the obligation to preserve the values of our federal
system against the imperative of judicial restraint." He added:
it is a grave judicial act to nullify a product of the democratic
process. The hard question is whether our decision constitutes an
indefensible example of contemporary judicial activism or a
legitimate exercise in constitutional interpretation. Respect for
the institutions of self-government requires us, in all but the
rarest of cases, to defer to the actions of legislative bodies. In
particular, "[t]he history of the judicial struggle to interpret
the Commerce Clause ... counsels great restraint before [we]
determine[ ] that the Clause is insufficient to support an exercise
of the national power." Lopez, 514 U.S. at 568, 115 S.Ct. 1624
(Kennedy, J., concurring). I would add to that cautionary tale not
only the judiciary's parallel experience with economic due process
but also the activist legacy of the Warren and early Burger Courts.
By considering today's decision in light of history's often cold
assessment of the product of those prior eras, we may ascertain
whether we forsake to our peril the high ground of judicial
restraint.
In this opinion, Wilkinson made explicit his unease with the Rehnquist
court's federalism jurisprudence, an unease also demonstrated in his
subsequent decision in [4]Gibbs v. Babbitt, in which Wilkinson voted
to uphold the application of the Endangered Species Act to activities
that could harm red wolves in North Carolina -- a decision that
prompted a scathing dissent by then-Judge Luttig, author of the
court's Brzonkala decision.
Judge Wilkinson is from a generation of legal thinkers whose view of
judicial review was defined in opposition to the Warren and Burger
Courts. For some in this generation, the problem was that these courts
were too quick to overrule the political branches on flimsy
constitutional grounds. For others, the problem was that the Court was
so willing to overrule the political branches at all. This is why some
conservative judges and thinkers embraced the Rehnquist Court's
federalism jurisprudence while others, including Judge Wilkinson,
viewed it with such trepidation. Thus, while I find Judge Wilkinson's
critique of Heller largely unconvincing, I do not believe it is a
surprise.
References
1. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1265118
2. http://volokh.com/archives/archive_2008_10_19-2008_10_25.shtml#1224641624
3. http://www.altlaw.org/v1/cases/1100952
4.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=4th&navby=case&no=991218Pv2&exact=1
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