Wrapping It Up: Incorporation and Judicial Activism

With this final posting, I’d like to revisit two issues that I raised in my initial essay: incorporation and judicial activism. Both issues have implications for future litigation — consistent with the caption for this blog, “After Heller: The New American Debate.”

I use as my takeoff point two comments by Erwin Chemerinsky, who has been conspicuous by his absence from this debate, even though he agreed to participate and knew in advance what was expected of participants. In his sole posting, Chemerinsky argues: “There is no need for the Court to use the privileges or immunities clause to apply the Second Amendment to the states. It can find the Second Amendment to be incorporated in the due process clause, just as it has done with the other provisions of the Bill of Rights.” That’s correct; and it may turn out to be an accurate forecast of how the Court’s Second Amendment incorporation jurisprudence will unfold. But it’s important to understand what’s at stake.

The privileges or immunities clause of the Fourteenth Amendment provides a textual foundation for incorporating those rights — both enumerated and unenumerated — deemed to be among the privileges or immunities of citizenship. Properly understood, that phrase encompasses so-called negative rights that can be exercised by free people without imposing positive obligations on others — such as the right to pursue happiness, start a business, and contract for one’s labor. Not included among the privileges or immunities of citizenship are positive rights or entitlements, such as welfare or a minimum wage, the enforcement of which affirmatively obligates non-consenting parties.

By contrast, the due process clause has been used to incorporate those provisions of the Bill of Rights deemed to be “fundamental to the American scheme of justice.” Perhaps most important among the omitted rights under the due process clause have been economic liberties — e.g., rights to property, to contract, and to engage in entrepreneurial activities shielded from arbitrary or excessive regulation by the states. Since the New Deal, regulations of those rights have been rubber-stamped by the courts. That could change if the vehicle for incorporation were the privileges or immunities clause. Obviously, this is not the forum to thrash out all the arguments and counter-arguments for due process vs. privileges or immunities. But that choice does matter; and the Court’s handling of Second Amendment incorporation might hearten those of us who believe that the bifurcation of our rights into fundamental and non-fundamental categories is incompatible with the text, structure, purpose, and history of the Constitution.

Finally, Chemerinsky asserts, “There is often no way for Justices to decide constitutional cases without using their own views and ideology as a basis.” I disagree. Justices whose decisions are anchored in the text of the Constitution have an objective basis for their views. To be sure, the text is not always clear, but it does provide a starting point, which can be supplemented by examination of constitutional structure, purpose, and history. On the other hand, those justices who subscribe to an anchorless “living Constitution” theory are disposed to use “their own views and ideology as a basis” for their decisions.

Justice Breyer described the living Constitution as one “designed to provide a framework for government across the centuries, a framework that is flexible enough to meet modern needs.” Our constitutional system, says Breyer, requires “structural flexibility sufficient to adapt substantive laws and institutions to rapidly changing social, economic and technological conditions.” But the Framers provided an amendment process for structural flexibility. If the Constitution needs to be updated, it should be accomplished by amendment, not by pretending that the written document doesn’t exist or doesn’t mean what it says. Indeed, what is the purpose of a written document if we act as though it’s just a piece of paper?

If government powers can be expanded with impunity, regardless of the constitutional text, then rights can be contracted with impunity. My Cato colleague Roger Pilon puts it this way: “A ‘living constitution’ that maximizes political discretion can be worse than no constitution at all. It preserves the facade of constitutional legitimacy while unleashing the political forces that a constitution is meant to restrain.” Indeed, one major reason for the broken judicial confirmation process is the Court’s gradual shift from reliance on the text to reliance on a living Constitution. When the text of our written Constitution is trumped by evolving societal needs, then the judicial function is just politics by another name. No wonder Congress and activist groups are so concerned about a nominee’s views on key public policy issues; those views could ultimately become law, notwithstanding explicit constitutional provisions to the contrary.

Also from This Issue

Lead Essay

  • District of Columbia v. Heller: What’s Next? by Robert A. Levy

    Robert A. Levy, Cato Institute senior fellow in constitutional studies, was co-counsel to Mr. Heller in District of Columbia v. Heller, last month’s controversial Supreme Court case in which Washington, D.C.’s ban on gun ownership was ruled unconstitutional on the basis of a Second Amendment individual right to possess firearms. But what does Heller really imply for the future of gun rights and gun control in America? In this month’s lead essay, Levy asks and gives his answers to the questions on the minds of gun lovers and gun controllers alike. What gun regulations will now be permissible? Will the Second Amendment be “incorporated”? Did the court engage in “judicial activism”? And what’s next for the on-the-ground politics of gun control in Washington, D.C. and beyond? Levy’s tightly reasoned essay marks the beginning of the new American debate about guns after Heller.

  • The Heller Paradox: A Response to Robert Levy by Dennis A. Henigan

    In his vigorous reply to Levy’s lead essay, Dennis A. Henigan, Vice President for Law and Policy at the Brady Center to Prevent Gun Violence, argues that Heller was “a prototypical misuse of judicial power to advance an ideological agenda” based on Justice Scalia’s “transparently inconsistent and manipulative” reading of historical texts. Nevertheless, Henigan argues that “the Heller decision should prove to be a sharp disappointment to the gun lobby and other Second Amendment extremists” because “the lower courts are likely to interpret Heller as giving a constitutional green light to virtually every gun control law short of a handgun ban.” Moreover, Henigan argues, by decisively forbidding outright bans, Heller has defused the argument that gun control regulation sets us on a slippery slope to a society in which private citizens are not allowed to own guns. And therein lies the Heller paradox. By making Second Amendment rights clearer, the Court has made gun control easier.

  • The Right to Bear Arms and “Sensible” Gun Laws by David Kopel

    In his reply, Second Amendment scholar David Kopel argues that the Constitution’s mention of “the” right to bear arms implies the right pre-existed the government, and that the point of the Second Amendment was to rule out its infringement. That pre-existing right, Kopel maintains, was “the right of having arms for personal defense,” and there is little evidence for a pre-existing militia right. Kopel agrees with Dennis Henigan that “the Heller decision … will probably not affect most gun laws in the United States, even assuming incorporation in the 14th Amendment,” but differs on the nature of “sensible” gun control, and offers a useful and informed discussion of current regulations. Regarding Washington, D.C.’s newly minted regulations, Kopel predicts that “the new law will be declared void by the D.C. Circuit Court of Appeals, and that the Supreme Court will deny cert.”

  • The Heller Decision: Conservative Activism and its Aftermath by Erwin Chemerinsky

    In his reply to Robert Levy’s lead essay, constitutional scholar Erwin Chemerinsky argues that Scalia’s majority opinion in Heller was based on a shoddy application of Scalia’s own judicial principles and “powerfully demonstrates that Justice Scalia’s constitutional rulings … ultimately are animated by his conservative politics.” According to Chemerinsky, by ignoring a long history of precedent and throwing into question “countless other statutes and ordinances,” the decision “showed that conservative rhetoric about judicial restraint is a guise that is used to oppose rights [the conservatives on the Supreme Court] don’t like.” Chemerinsky further criticizes the court for failing to clarify the level of scrutiny to be applied to gun regulation, and suggests that it should be the “reasonableness” test. Heller will be incorporated, Chemerinsky predicts, but will unlikely affect the coming elections.

The Conversation