Constitutional Law

Thoughts on Justice Breyer on the Second Amendment

Prof. Sanford Levinson has written on how views of the Constitution break down in a pattern very similar to the division in religious thought during the Reformation and Counterreformation. There are underlying considerations that escape notice, even as a person takes a position. He actually has a four way split, but we can use a simpler two-way one:

The Constitutional "Catholic" view: interpreting the Constitution is a duty assigned to a special body of experts. The are the best and the brightest, and devote a substantial part of their lives to this task, hence are unlikely to botch it up. Each decision they make is made in the context of past ones, which are likewise unlikely to have been botched. Their first undertaking is therefore to decide the issue now before them so that it is supported by all past decisions and conflicts with none. One should be reluctant to depart from past rulings, because that destabilizes the entire intellectual framework.

The Constitutional "Protestant" view: the Constitution is a straightforward document, established by the consent of the people and meant to be read by them; specialized bodies tend toward bias and self-interest. The first point of reference should be the document, not prior interpretations of it. If the past decisions of a specialized body have wandered from its apparent meaning, they should be of no consequence, since it is the document, not prior rulings on it, that governs. Everyone makes mistakes, and when they are made we should correct them, and not reluctantly.

Full post as published by Of Arms and the Law on December 16, 2010 (boomark / email).