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Judge Richard A. Posner on the D.C. guns case (Heller): "In Defense of Looseness."

A nice long article in The New Republic. I'll excerpt a little (but read the whole thing):

The idea behind the decision--it is not articulated, of course, and perhaps not even consciously held--may simply be that turnabout is fair play. Liberal judges have used loose construction to expand constitutional prohibitions beyond any reasonable construal of original meaning; and now it is the conservatives' turn. Another plausible example of payback is the conservative justices' expansive interpretation of the free-speech clause of the First Amendment to limit regulation of campaign financing....

Constitutional interpretations that relax rather than tighten the Constitution's grip on the legislative and executive branches of government are especially welcome when there are regional or local differences in relevant conditions or in public opinion. The failure to recognize this point (or perhaps indifference to it) was the mistake that the Supreme Court made when it nationalized abortion rights in Roe v. Wade. It would be the mistake the Court would be making in the unlikely event that it created a federal constitutional right of homosexual marriage. It is the mistake the Court has made in Heller....

Heller gives short shrift to the values of federalism, and to the related values of cultural diversity, local preference, and social experimentation....

I cannot discern any principles in the pattern of the Supreme Court's constitutional interpretations. The absence of principles supports the hypothesis that ideology drives decision in cases in which liberal and conservative values collide. If loose construction produces a conservative limitation on government, most conservatives will support it and most liberals will oppose it; and if it produces a liberal limitation on government, most liberals and conservatives will switch sides.

Full post as published by Althouse on August 18, 2008 (boomark / email).