Constitutional Law

George Will

I suppose I must mention his piece in WashPo. I mean he is a famous writer who wears a tie and always looks like he never got over being buggered with a turnip during freshman hazing at an Ivy League school (and has a classical education so he would recognize being buggered with a turnip) but can still use baseball analogies in every article, even if discussing his appendectomy, just to show he's one of the guys. Provided all the guys in question have been buggered with turnips as a prelude to a really classical education.

OK, I tired of his writings years ago and rarely read them. Just as he probably rarely eats turnips. But I digress.

His gripe (carefully hidden -- he's just relating what someone else said, mind you -- is that the Heller Court, well, recognized a right. OK, unlike Roe v. Wade, "In Heller, the court was at least dealing with a right the Constitution actually mentions." But Will (who is probably as frightened of firearms as he is of turnips) maintains it is a disputed right (hey, there was a dissent!) and now the Court will have to ... shudder ... decide what it means, and that means policy makers (i.e., the Obama Admin., Nancy Pelosi, the California and Illinois legislatures, etc.) will be unable "to function as laboratories for testing policy variations." Policy variations as to ... hmmm... expressly-stated constitutional rights. But, where the question is at all close, Will argues that conservativism requires deference to elected policymakers, especially those at the local level. "Judicial conservatism requires judges to justify their decisions with reference to several restraining principles, including deference to the democratic branches of government and to states' responsibilities under federalism."

I think Americans in 1791 chose their policy variations.

By way of contrast, we can look at Will's response to the Kelo decision, another 5-4, which held that private property may be taken (with compensation) by local governments in order to be given to private developers whom they argued would make better use of it. The title of his column: "Damaging 'Deference." He calls the government's claim "brazen," its actions a use of "life-shattering power." His conclusion:

"Liberalism triumphed yesterday. Government became radically unlimited in seizing the very kinds of private property that should guarantee individuals a sphere of autonomy against government.

Conservatives should be reminded to be careful what they wish for. Their often-reflexive rhetoric praises "judicial restraint" and deference to -- it sometimes seems -- almost unleashable powers of the elected branches of governments. However, in the debate about the proper role of the judiciary in American democracy, conservatives who dogmatically preach a populist creed of deference to majoritarianism will thereby abandon, or at least radically restrict, the judiciary's indispensable role in limiting government."

Full post as published by Of Arms and the Law on November 24, 2008 (boomark / email).