Friday, June 27, 2008

"Constructionism" and Gun Control

I agree that the Second Amendment is ambiguous enough to sustain differing interpretations. Is the right to bear arms something the citizenry has in the context of a well-regulated militia, or is that right a necessary precondition for same that thus needs to be protected? This is the crux of the 5-4 disagreement on yesterday's historic decision that the Second Amendment does in fact constitute an inalienable right of the individual citizen to own a gun, something never before found by a court in our history, believe it or not.
Today I'm not so much engaged in this Talmudic argument as I am by the question of what a "conservative" Supreme Court really amounts to. What we've been told for many a long year is that "conservative" jurisprudence is not really "political" in the secular sense of pushing an agenda (unlike liberal jurisprudence, supposedly). Rather "constructionists" (famously Robert Bork) claimed that it was legislators who determined the law, and that when liberal jurors found "rights" that were not explicitly contained in the constitution they were legislating from the bench: liberals were "activist judges" who had gone beyond their constitutional function. The interesting thing about a strict constructionist like Bork was that his view definitely worked both ways: just as he repudiated Griswold vs. Connecticut, which struck down a Connecticut law prohibiting birth control, on the grounds that no right to birth control could be found in the Constitution, so his position committed him to the view that if, say, California mandated birth control use, the courts would be beyond their purvue to intervene. Similarly, in arguing for a state's prerogative to prohibit political demonstrations, he admitted that his view also precluded judicial intervention if a state were to mandate, Cuban-style, participation in demonstrations. Of course this testimony belied Bork's legitimacy: he was nominated because he was correctly thought by the Reagan administration to intend to apply his reasoning to defending right-wing zealotry, not zealotry of the left-wing variety. Nothing in strict constructionism tends in either direction. The whole thrust of constructionism, in fact, is to affirm the authority of the legislature and to limit the power of the judiciary. It's a judicial philosophy that a doctrinaire socialist could easily love, and the Senate was right to reject Bork's nomination.
But it doesn't look like we have to worry about the perils of constructionism, because the newly right-leaning Roberts Court has flown in the face of that philosophy with yesterday's decision: they have codified a new right, like the right to privacy or the right to an abortion, not explicitly stated in the Constitution. This signals that the Roberts Court will pursue a conservative political agenda. They will invoke juisprudential notions when it suits them, but these will be ignored, as they were yesterday, when they are politically inconvenient. Meet the new boss, same as the old boss: activist judges!

1 comment:

Z. Teruoc said...

A new right or one thta had never been enforced?