Academic

Denning the New Doctrinalism in Constitutional Scholarship

By Lawrence Solum

Brannon P. Denning (Cumberland School of Law) has posted The New Doctrinalism in Constitutional Scholarship and Heller v. District of Columbia (Tennessee Law Review, Vol. 75, No. 4, 2008) on SSRN.  Here is the abstract:

This brief essay examines an apparent new trend in constitutional scholarship that focuses less on the fixing of constitutional meaning - the usual focus of constitutional theory - and more on the rules courts develop to implement constitutional commands. This new doctrinalism offers a way forward from the stalemated debates of constitutional theory, and perhaps can bridge the oft remarked upon divide between academics on the one hand, and judges and practitioners on the other. While the New Doctrinalism has already attracted critics who question whether interpretation and doctrine can meaningfully be separated, the essay concludes that its emergence is a welcome one in constitutional theory. The upcoming case on the Second Amendment, Heller v. District of Columbia, is offered as a case study in the payoff for constitutional law of taking doctrine seriously.

And from the text:

Heller demonstrates the payoff for taking doctrine seriously?and the downside to ignoring it in constitutional litigation. For years, the debate over the Second Amendment rarely progressed beyond the historical: did the Framers intend the Amendment to guarantee an individual right or a ?collective? or ?state?s right??43 Since the courts were still disinclined to engage the constitutional dimension to gun control, this debate was largely academic; thus, no one gave much thought to what the proper standard of review would be.44 To the extent anyone considered it, there seemed to be an assumption that ?strict scrutiny? would follow from the individual rights reading. Since it was widely assumed that ?strict? scrutiny was well nigh fatal to any law to which it was applied, gun control proponents and opponents both had a stake in settling the individual/collective rights question. At first, the initial posture of the debate over the Amendment seems to confirm Hills? and Levinson?s argument that constitutional meaning is determined by rules, rather than the other way around.

But I think Heller could stand instead as testament to the benefits of attempting to separate meaning and implementing rules. As New Doctrinalist scholarship has shown, strict scrutiny is not necessarily the default standard of review for provisions of the Bill of Rights that indubitably guarantee ?individual? rights. 45 Moreover, as Adam Winkler argued, in states in which individual gun rights are clearly established in state constitutions, strict scrutiny has not followed as a matter of course.46 In addition, studies have shown that several different tests travel under the label ?strict scrutiny,? but are not applied by courts in the same way. Winkler?s argument is that one could support the individual rights interpretation of the Second Amendment without dooming ?reasonable? gun control legislation if challenged.47 This, apparently, is the tack that the Bush Justice Department has decided to pursue in Heller?to the dismay of many gun rights supporters.

Because of the assumption that the choice was between ?strict in theory, fatal in fact? scrutiny of gun control legislation, on the one hand; and rubberstamp rational basis, on the other, with no ground in between, gun control opponents and proponents were forced into the interpretive equivalent of trench warfare. Vast amounts of ink were spilled to advance the debate, at most, inches. The same ground was fought over again and again. What Winkler has done, though, is demonstrate that it is possible both to acknowledge what text and history appear to support (and what, in any event, most people believe), viz., that the Second Amendment guarantees an right to private gun ownership, while at the same time showing that concession need not result in all gun laws, including those barring the disarming of felons or the mentally ill, being placed in constitutional jeopardy. Without the New Doctrinalism?s interest in the formation and application of constitutional rules, such a middle ground would not exist.

Very interesting.

Full post as published by Legal Theory Blog on May 01, 2008 (boomark / email).