foundations lecture 5

8/17/2019 Foundations Lecture 5

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Lecture V: Heller

(Guest Lecturer: Professor Blocher)

Recap:

So far we’ve talked about legal history and the ersistent an!ieties about "ustifying legal

"udg#ents$ %e’ve covered the classicists& realists& the argu#ents that can be #ade (to "ustifylegal decisions)& and law and econo#ics$ 'oday& we are talking about the ueen of the legal

sub"ects when it co#es to concerns about "udicial decision#aking: *onstitutional Law$ +ore

than any other area& the an!iety of "ustifying how we #ake "udg#ents has been at its highest

here$

Professor Blocher’s Lecture:

%e will cover two things: ,) *onstitutional interretation and -) the Second .#end#ent$

Legal realist an!iety is articularly ronounced in .#erican *onstitutional Law$ *onstitutionalLaw is obsessed with the #alleability of law& and fear that it is infinitely #alleable$ /ou see it

everywhere$

%hy are we afraid of the law being infinitely #alleable& esecially in *onstitutional Law0 ,) %e

#ay have higher hoes for certainty in *onstitutional Law$ Perhas this is because the stakes are

higher$ -) %e want to believe that the *onstitution takes certain things off the table$ 1t is

ostensibly #eant to be a safeguard against tyranny$ 2) 1nterretation is a #uch bigger deal here$1t is a s#all docu#ent with vague ter#inology$ 3) Marbury v. Madison: 4udicial 5eview gives

"udges in this institution the ability to counter the will of the #a"ority$

'hese an!ieties #anifest the#selves in debates& which focus on: ,) 6ow do we interret the

*onstitution0 (%hat are the valid #oves in interretation0) -) 6ow does this interact with the

actual& substantive issues0 (6ow should we resolve the case0)

The Second Amendment/ Heller :

6ow should we know what the Second .#end#ent #eans0 ('his is a different uestion thanwhat does it #ean$)

%here should we start0 'he te!t$ Textualism is an interretative theory& but al#ost everydecision of *onstitutional Law begins with the te!t$

%hy should we be te!tualists0 1t is fi!ed$ 'hese words are written down$ Part of the ro#ise of te!tualis# is that it is valueneutral$ 'he words are so#eti#es very clear$ 1t is a good way to get

at the 7ra#er’s intent& and we should defer and resect the 7ra#er’s intent$


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'e!tualis# in Heller itself: 4ustice Scalia starts with the 8oerative9 clause$ 1n articular& he

e!a#ines 8eole$9 %hat are the #aterials that he relies on0 %hat #oves does he #ake0 6e

looks at other arts of the *onstitution where 8eole9 is used$ Peole should include retty#uch everybody& he concludes& according to the other rovisions of Bill of 5ights$ 'his is an

e!a#le of 1ntrate!tualis#$

6e also brings out a dictionary fro# ,;nusual&9 etc$

'hese all are interreted differently today$)

.lso& we totally ignore so#e words$ (8*ongress shall #ake no law$$$9 8.r#ies and ?avies$9)

%hat about originalism0 'his theory is about what things #eant at the ti#e of the 5atification$1t #ay also #ean what the words #eant to the 7ra#ers$

Original intent originalism--inuires into what the eole who wrote the docu#ent thought it#eant$ %hat was their intent0 %hy should this #atter0 %e do the sa#e thing with the

legislatures$

Original meaning originalism is another offshoot of originalis#$ %e also care about what the eole thought when they ratified it$

%hy should we use originalis#0 +aybe originalis# can give us a #ore fi!ed answer$ 4usticeScalia likes to say: 8at least 1 know what 1’# looking for& and when 1 find it& 1’# bound$9 7i!ing

the analysis at a oint in ti#e can be a value$ %e don’t want everything to be u for grabs at all

ti#es$

1f you’re an originalist& can you accet certain kinds of *onstitutional change0 /es$ 'hat’s why

.rticle V is there$ %e’ve radically reva#ed the *onstitution through the a#end#ent rocess

before$ 'hat is the way that change should haen$

But there are also roble#s with originalis#$ =riginalis# is not as fi!ed as it clai#s to be$

Heller de#onstrates that oinions can differ on what eole #eant or thought at the ti#e$ .ndthere’s an argu#ent against stability and the fi!ed nature of originalis#$ 1f the arc of change

bends towards "ustice over ti#e& then you don’t want to sty#ie it$ 'here’s also the cynical

critiue: originalis# "ust gives you "ustification for doing what you already wanted to do$

=ne big criticis# is that there’s no such thing as a coherent intent to the *onstitution$ 7ra#ers

were a 8they&9 "ust like legislatures$ .nd so were the eole who ratified it$ .lso: if there was


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any roble# within the original docu#ent& that roble# is eretuated if everyone strictly

adheres to originalis#$

Back to Heller again: is one oinion originalist and the other not0 %ho has better clai# to

originalis#0

6ow about the word 8ar#s09 *an an originalist be okay with that alying to #odern firear#s0

1t is an issue of generality$ %hat level should we set when interreting the te!t0 .r#s can aly

to& and enco#ass& #odern ar#s$ %hat about 8#ilitia09 %ho wins on that0 .nd with the refatory and oerative clauses& which one should tru#0 1s this now a right without a urose0

=r is the Second .#end#ent like the 'hird .#end#ent& and "ust has al#ost no use today0

4ustice Breyer is #ore willing to look at #odern conseuences$ 6e believes in living

constitutionalism$ %hat does a living constitutionalist look to0 +aybe you can look at how the

word is used today& and the values of society today$

%hat are the advantages of this0 %e can adat the *onstitution to new circu#stances$ Societychanges and that’s a good thing$ +aybe it can give the *onstitution so#e legiti#acy to the

eole$ +aybe it is a less constricted view of the *onstitution itself$ 1t accets that the 7ra#ersleft things unanswered$ 7or instance& #aybe the 7ra#ers didn’t really know what 8cruel and

unusual9 #eant to a degree of secificity$

+aybe living constitutionalis# resonds #ore to de#ocracy$ @A of eole believe that the

Second .#end#ent rotects an individual right$ 'hus& Heller accord with oular oinion$ But

this is not how eole felt even 2< years before$ +aybe with the *onstitution& fle!ibility is a

virtue$

%hat’s worriso#e about living constitutionalis#0 *hange can cut both directions$ +aybe we

aren’t rogressing$ 'he whole oint of the *onstitution is to revent assions fro# shainggovernance$ .nd why can’t we rely on .rticle V for change when we really need it0 1f eole

really want to a#end it& they still can$

Practically& .rticle V .#end#ents #ay not be able to be assed or ratified$ ('he 5. went u

@&


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Professor Boyle and Professor Blocher ialogue:

>nder 4ustice Scalia’s aroach& what use is the refatory clause0

'here really doesn’t aear to be one$

'here are at least 3 '/PS of reasons offered in suort of originalist argu#ents$ %hich are

you0

• , 'his is the right way to interret any text (contract& novel& statute& oe#& constitution$)

• - 'his is the right way to interret our constitution! (=ther constitutions #ay be

different)

• 2 'his is the "est #ay of interpreting our constitution "ecause of its effects in

di#inishing "udicial sub"ectivity& ensuring deter#inacy

• 3 'his is one of the #ays #e interpret our constitution D but it takes its lace with

#any others and #ay be used at the sa#e ti#e as the#$

(?ote that there is a rofound difference between original intent and original understanding$ =nethe intention of authors$ 'he other the understanding of the readers$ 'he fact that there are

#ultile tyes of originalis# challenges argu#ents ,& - and 2 above& but does not disrove the#$

)

1s originalis# #ore aroriate with resect to the *onstitution than other te!ts0

1nterestingly& Professor Powell has #ade a convincing argu#ent that the original intent of the

7ra#ers was that they didn’t want their intent to bind future generations$ 'hey wanted eole to

be bound according to the traditions of the co##on law$ 'his aeals #ore to Professor

Blocher& because while the *onstitution can take a few things off the table and fi! #eaning inso#e ways& it doesn’t do that often$ 1t doesn’t secifically say whether nunchucks are covered

by 8ar#s9 in the Second .#end#ent0

%hen is originalis# convincing& and when isn’t it0

'he easiest uestions are where the te!t is really clear$ 1f you’re - years old& you can’t run for resident$ 'here #ust be two senators for each state$ %e know that$ 1n al#ost all other areas&

originalis# is unsatisfying$ 1t’s hard to find a scholar who disregards originalis# entirely& but it

isn’t’ articularly effective by itself$

%hy isn’t 2@ interreted as 2@ would be today in relation to the increased age of eole0 %hyisn’t it like 8cruel and unusual09

6istorically& eole were worried about eole coasting on their fa#ily na#es& so you could take

a urosive aroach and that #ight change things a bit& but the #eaning does #atter to an

e!tent$ >lti#ately& words can be #ore fi!ed in so#e ways than in others$ 'his is all on asectru#$


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'he first argu#ent for originalis# (above) doesn’t care about bad outcomes$ 'he right #ethod

should always tru# the right result$

Eoesn’t it give us so#e sort of deter#inacy and stability0 ven before the Bush ad#inistration&

conservatives wa!ed oetic about originalis# as a bulwark against liberalis#$

Professor Blocher can’t think of one ti#e when originalis# has definitively settled an issue$

5egarding intellectual roerty& Professor Boyle thinks that the 7ra#ers were articularlyconcerned about industry cature and #onoolies over ti#e$ %hile this viewoint #aybe isn’t

as clear as the 82@9 e!a#le& it is retty close to being settled$ 'he *ourt (including all the

conservative "ustices e!cet 4ustice .lito)& however& has re"ected that view$

%hat are the areas that are #ost heavily influenced by orginalis#0

'he Second and Seventh .#end#ent$ But that’s about it$ =riginalis# is disroortionately

#entioned in scholarshi& co#ared to its function i#act$ /ou don’t see it often in a #a"ority

oinion$ So 4ustice Scalia reresents a view that is i#ortant and influential& but doesn’tdo#inate the case law yet$ .lso: al#ost no one is faithful to one theory$ 4ustice 'ho#as is

robably strongest originalist& but even he is not entirely an originalist$

1f everyone uses all of these techniues and theories& what do we get at the end of this analysis0

1s there any deter#inacy or stability0

Language #ay be a good analogue to think about$ 7or instance& gra##ar only works if we try to

adhere to the rules$ 1t #akes things intelligible& and gives us a co##on ability to discuss the#$

81 like guns9 isn’t a roer "ustification for any argu#ent for interreting the Second.#end#ent$ 1t #ay be a roer olitical "ustification$ *onstitutional Law isn’t "ust olitics$ So

we need to understand the rules of gra##ar and language to effectively argue our ositions in

the legal real#$

But is this all about socialiFation0 1s this about fir# rules that dictate what is right or wrong& or

co##unity sense of what is 8an accetable argu#ent9 or 8totally off the wall$9 But at leastthere’s a oint #ost eole can agree on$ 7or e!a#le& co#are Bush v. Gore to NFIB v.

Sebelius$ 'he for#er looked like the *ourt was "ust #aking things u& and not adhering to the

rules at all$ 'he latter #ay have involved so#e unorthodo! #aneuvers& but they were still valid

"ustifications$

=ne final oint: so#e argu#ents that begin as insane can work their way into being seen as

rational$ 'hink about Heller $ ?o federal court recogniFed that the Second .#end#ent rotectedan individual right before -

foundations lecture 5

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