Judge Wilkinson on Roe and Heller:

"In both Roe and Heller," 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 make the same argument about almost ANY case protecting a constitutional right.

A much better analogy to Heller 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. Which raises the question of why, beyond political preferences or mindless fear of being called an "activist," a Supreme Court Justice should interpret the Second Amendment far more narrowly than he interprets the First Amendment.

In any event, 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.

UPDATE II: Commenter "Alan Gura", who may or may not be the Alan Gura who argued Heller, adds this rhetorical question: "Which judicial results are mandated by the Fourth Amendment's textual proscription of unreasonable searches and seizures?"

UPDATE: In case readers are interested, personally I don't find it all that problematic that the Court found in Roe that terminating pregnancy is a "liberty" within the meaning of that term in the Due Process Clause. What I do find problematic is that the Court provided no sound reason why that liberty right was not subject to prohibition, or even meaningful regulation, under the states' police power. Roe, in that sense, was far more radical than the case it is most often analogized to, Lochner v. New York. In Lochner, the Court acknowledged that the right to liberty of contract is subject to the police power, and that laws that truly were aimed at protecting health and safety of either workers or the public at large were constitutional even though they infringed on liberty of contract.

Related Posts (on one page):

  1. Wilkinson's Restraint:
  2. Judge Wilkinson on Roe and Heller: