Constitutional Law

Article replying to Judge Wilkinson

I blogged a while ago about the article by Judge J. Harvey Wilkinson, arguing that Heller was essentially non-conservative because it (like Roe v. Wade) was a mark of "judicial activism." Now Prof. Nelson Lund and Dave Kopel have a detailed reply. You can read the abstract there, and download the paper in pdf (see link above its title).

"Part I shows that Judge Wilkinson's analogy between Roe and Heller is untenable. The right of the people to keep and bear arms is in the Constitution, and the right to abortion is not. Contrary to Judge Wilkinson, the genuine conservative critique of Roe is based on the Constitution, not on judicial "values." Judge Wilkinson, moreover, does not show that Heller's interpretation of the Second Amendment is refuted, or even called into serious question, by Justice Stevens' dissenting opinion.

Part II shows that Judge Wilkinson himself does not adhere to the "neutral principle" that he claims to derive from "judicial values." Under the principle of judicial restraint that he articulates, many now-reviled statutes, including the Jim Crow laws of the twentieth century, should have been upheld by the courts. Judge Wilkinson does not accept the consequences of his own supposedly neutral principle, preferring instead to endorse or condemn Supreme Court decisions solely on the basis of his policy preferences. That is not judicial restraint. It is judicial lawlessness."

Full post as published by Of Arms and the Law on December 07, 2008 (boomark / email).