Will/Wilkinson Wrong

Yes, even George Will can be wrong, even when he is agreeing with someone who is as seldom wrong as Judge J. Harvie Wilkinson III of the Fourth Circuit.

In a recent column Will praises Wilkinson for damning — in a Virginia Law Review article — the Supreme Court’s Heller decision of last June, which held that the Second Amendment protects an individual right to own and bear arms. Wilkinson, amplified by Will, argues that Heller was bad for he same reasons that Roe v. Wade was bad.

Writing for the Virginia Law Review, Judge Wilkinson … says that Heller, like Roe, was disrespectful of legislative judgments, has hurled courts into a political thicket of fine-tuning policy in interminable litigation and traduced federalism. Furthermore, Heller exposed “originalism” — the doctrine that the Constitution’s text means precisely what those who wrote its words meant by them — as no barrier to “judicial subjectivity.”


In Roe, the court said that the 14th Amendment guarantee of “due process” implies a general right of privacy, within which lurks a hitherto unnoticed abortion right that, although it is “fundamental,” the Framers never mentioned. And this right somehow contains the trimester scheme of abortion regulations.

Since 1973 the court has been entangled in the legislative function of adumbrating an abortion code the details of which are, Wilkinson says, “not even remotely suggested by the text or history of the 14th Amendment.” Parental consent? Spousal consent? Spousal notification? Parental notification? Waiting periods? Lack of funding for nontherapeutic abortions? Partial-birth abortion procedures? Zoning ordinances that exclude abortion facilities? The court has tried to tickle answers for these and other policy questions from the Constitution.

Conservatives are correct: The court, having asserted a right on which the Constitution is silent, has been writing rules that are detailed, debatable, inescapably arbitrary and irreducibly political. But now, Wilkinson says, conservatives are delighted that Heller has put the court on a similar path.

In Heller, the court was at least dealing with a right the Constitution actually mentions. But the majority and minority justices demonstrated that there are powerful, detailed, historically grounded “originalist” arguments for opposite understandings of what the Framers intended with that right to “keep and bear arms.”

Now the court must slog through an utterly predictable torrent of litigation, writing, piecemeal, a federal gun code concerning the newfound individual right. What trigger locks or other safety requirements impermissibly burden the exercise of this right? What registration requirements, background checks, waiting periods for purchasers, ballistic identifications? What restrictions on ammunition? On places where guns may be purchased or carried? On the kinds of people (e.g., those with records of domestic violence) who may own guns? On the number of gun purchases in a month?

Will/Wilkinson conclude — rather extremely, in my view — that unless either the Constitutional text or the intent of the framers is unequivocal, judges must defer to other branches of government.

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. But, Wilkinson writes, Heller proves that when the only principle is originalism and when conscientious people come to different conclusions about the Framers’ intentions, originalist judges must resolve the conflict by voting their policy preferences.

One problem here, among others, is that neither text nor intent is often unequivocal, and conscientious people can come to different conclusions regarding just about everything and anything. Indeed, legislators differ over the proper interpretation of the legislation they wrote; ordinary citizens, conscientious all, frequently differ over the interpretation of contracts they signed; etc. If judges had to defer to other branches every time “conscientious people come to different conclusions” about the constitutionality of challenged measures, they would never decide anything.

What both Will and Wilkinson miss here, surprisingly, is the fact that there are reasonable, conscientious arguments on both (or even many) sides of an issue doesn’t mean that some arguments aren’t better than others, nor does it mean that when faced with conflicting, reasonable arguments judges must choose between deferring to other branches or letting their own policy preferences run wild. It is possible, in short, for a judge to decide that one well-reasoned, conscientious argument is better than another well-reasoned, conscientious argument even when the better argument leads to a result that, as a matter of policy, the judge opposes. Not only is that possible; it’s done all the time, as I’m sure Judge Wilkinson knows better than most.

Fortunately Judge Wilkinson doesn’t practice what he preaches here (Will, a mere ink stained wretch, doesn’t practice anything). Consider, for example, what he has written, widely and well, and decided about affirmative action preferences. In one of his better known opinions, for example, writing for the Fourth Circuit majority in J.A. Croson Co. v. City of Richmond 822 F.2d 1355 (1987), he had no trouble in refusing to defer to Richmond’s policy of requiring a racial quota for city contractors. As summarized by a succinct Stanford review of his decisions, in Croson:

Judge Wilkinson held that in order to show the compelling government interest necessary to justify the plan, the city must show prior discrimination by the city itself, not merely broad-based historical discrimination. Otherwise, the plan would constitute a bald dispensation of public funds and employment based on the politics of race. Judge Wilkinson held that the city failed to show a firm basis for believing it had engaged in past discrimination that required remedial action.

Further, even if remedial action was necessary, Judge Wilkinson held that the plan was not narrowly tailored to any remedial goal because the 30% quota was the product of arbitrary choice and bore no relationship to the percentage of minority-owned businesses in the city. Therefore, the quota imposed an overbroad competitive burden on non-minority businesses.

Judge Wilkinson’s opinion, with its holding that an organization may engage in racially preferential hiring only to correct its own past discrimination, was, as everyone knows, upheld by the Supremes. But surely Judge Wilkinson, gracious gentleman that he is, did not believe the Richmond city councilmen who instituted quota hiring and the able lawyers they hired to represent them were lacking in conscientiousness. Nor would he be so churlish as to suggest that his colleagues who disagreed with his Fourth Circuit opinion, or Justices Marshall and Blackmun who dissented from Justice O’Connor’s opinion for the Supreme Court, were lacking in conscientious, reasonable arguments. He certainly could not find in the text or history of the 14th Amendment any compelling evidence that it allows an employer to discriminate to correct his past discrimination but not “societal” discrimination. Similarly, I’m sure, Judge Wilkinson would readily acknowledge that the 14th Amendment nowhere mentions “narrow tailoring,” nor can he doubt that the framers of that Amendment had no intention whatsoever to ban all race preferences. Still, he showed no hesitation, and since has shown no remorse, for refusing to defer to the democratic decision of local authorities in this case.

Nor has Judge Wilkinson’s determined refusal to defer to local decision-makers’ reasonable, conscientious interpretations of ambiguous, somewhat open-ended Constitutional commands been limited to Croson. In fact, there is no more eloquent, no more persuasive root and branch refutation of his criticism of the Heller majority than the praise he recently heaped on the opinions by Chief Justice Roberts and Justice Thomas in Parents Involved, lauding the Court’s holding in that case that Seattle and Louisville could not assign students to schools by race.

Judge Wilkinson, meet Judge Wilkinson. Parents Involved, the latter Judge Wilkinson writes in the Harvard Law Review,

goes a considerable way toward affirming that our common citizenship and shared humanity transcend differences of ethnicity and race and that a Republic riddled with race-conscious decisionmaking is not what America aspires to be….

These are noble “aspirations,” and I for one agree with them, but his reserving to the courts to choose certain aspirations over others does not comport with the exaggerated judicial deference commanded by his Heller critique. Thus it could be said with equal force (indeed has been said with great force), that neither does America aspire to be a nation where the state can disarm its citizens, limited only by its own discretion, but I’ll come back to that later. The question here is not the question of “what America aspires to be,” but who has the authority to determine what aspirations shall control.

Judge Wilkinson confronted head on the very sort of objections to his argument that he made against Heller, and he was not impressed. “It will be said,” he predicted, accurately,

that the Court forsook not only its traditions but also its respect for precedent; that a Court majority ostensibly opposed to activism was all too ready to practice it….

These arguments “are not without poignancy and force,” he admitted, and

the Supreme Court majority must have known for a certainty that all this and more was coming. It took some courage therefore for the Court plurality to express itself in such unequivocal terms. The Court could have seized upon some narrow defect in means and left it at that….

But the Roberts opinion to its credit did much more. The concessions it made were only those recent precedent required it to make. It limited the nonremedial state interest of diversity to the expressive interests unique to higher education. It characterized the school boards’ interest, by contrast, as that of simple racial balancing which, were it accepted as compelling, “would justify the imposition of racial proportionality throughout American society.” The opinion courted a powerful dissent which it then took on in hard-nosed terms. It praised Brown v. Board of Education as unambiguously committed to the rejection of all forms of discrimination based on race. And finally: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

There are great risks in this sort of ringing clarity, particularly in an area so burdened by history, so fraught with contemporary controversy, and so open to strong opposing argument. But there are far greater risks in failing to defend a principle that is not easily sliced and diced or otherwise compromised….

And what, readers of Judge Wilkinson’s Heller critique and others are entitled to ask, is that principle, where does it come from, and who should be its final arbiter? Again, Judge Wilkinson himself here forthrightly steps up to the plate and slams the other Judge Wilkinson’s Heller reservations right out of the park:

The whole sad saga of the early African American experience teaches that racial decisions by the state remain unique in their capacity to demean. To squeeze human beings of varying talents, interests, and backgrounds into an undifferentiated category of race is to submerge what should matter most about us under what should matter least. To seize upon this one proven odious criterion of judgment as the basis for preferment of some and disfavor for others, and as a potential determinant of the destiny of all, is to commit this country to the perpetuation of means employed in the darkest hours of its history. From this, the Fourteenth Amendment was supposed to be the instrument of deliverance….

…. Race and religion are the great potential dividers in America — just as the Establishment Clause inhibits governmental preferences based on religion, the Fourteenth Amendment inhibits governmental preferences based on race….

DISCRIMINATIONS Readers will find this argument familiar, and know that I fervently agree with it. They will also know that far feebler analysts than Judge Wilkinson have made essentially the same argument. My problem, in short, is not that I don’t agree with Judge Wilkinson’s argument here — indeed, I do, fervently, and his argument is far stronger than my excerpts can reveal — but that the Judge Wilkinson who criticized Heller as an activist decision based on a hotly contested Constitutional premise does not.

Look again at this both compelling and revealing sentence:

The whole sad saga of the early African American experience teaches that racial decisions by the state remain unique in their capacity to demean.

I agree; it does, but the Heller-criticizing Judge Wilkinson would no doubt reply, “Yes, but whom does it teach? Surely the Seattle and Louisville school authorities, their lawyers, and the many fine judges who agree with them have also conscientiously learned their American history, and what authorizes a bare 5-4 majority of unelected judges to tell them they’re wrong?”

In one sense it is odd that Judge Wilkinson is so unabashedly hostile to the Heller majority’s holding on the meaning of the 2nd Amendment, since over the past few decades that view has become so accepted in legal academia that it has come to be called the “Standard Model.” (Heller, asserts a recent treatise, “effectively endorses the so-called Standard Model view of the Second Amendment.”) That does not mean that it is uncontested, or that there are no reasonable, conscientious scholars who disagree, but it has by now commanded a broad consensus including not only conservative scholars but such well-known liberals as Laurence Tribe, Akhil Amar, and Sandy Levinson. There is certainly a much broader consensus today among not only constitutional scholars but a vast majority of the public that the 2nd Amendment protects an individual right than there was in 1954 that the 14th Amendment commanded an end to school segregation.

And speaking of the 14th Amendment (which all Judge Wilkinsons with whom I am familiar do so eloquently), let me conclude by noting that I also find it surprising — almost to the point of being inexplicable — why Judge Wilkinson has not been persuaded by Prof. Amar’s compelling demonstration, in THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION , summarized eloquently by this recent Harvard Law Review article, that, whatever the “original meaning” of the 2nd Amendment, the combination of the virtually contemporaneous and immediately subsequent state constitution treatments of citizens and their arms and then the 14th Amendment itself have confirmed that the pervasive understanding of the American people is that the Constitution granted them an individual right to bear arms. (If you read only one article on the 2nd Amendment, and especially on Heller, read this article by Amar.)

Under proper originalist and textualist ground rules, the Constitution should indeed be read to protect an individual right to have a gun at home for self-defense……. [T]he key is to read the Constitution in a holistic fashion and to widen our analysis beyond the Second Amendment….

The Ninth Amendment’s text does not quite say that “the enumeration in the Constitution of certain purposes of rights shall not be construed to deny or disparage other purposes for those rights.” But it does say something rather similar, and it was designed to reassure the American public that the fundamental rights that they believed they already had would not be lost merely because only some of these rights were explicitly enumerated or because others were narrowly worded. Even if the English common law right of self-defense was different than the Second Amendment right, many Americans in the Founding era may have believed they had both rights — and the Ninth Amendment was designed to reassure such Americans that unduly narrow interpretations of the protected rights would be disfavored. And even if later Americans in the antebellum period were demonstrably mistaken about the correct reading of the Second Amendment as originally understood, their widespread mistake about the scope of their fundamental rights and their evident celebration of an individual right of arms for self-defense should be protected by the Ninth Amendment.

Now add the Fourteenth Amendment to the mix. This Amendment proclaimed that all citizens would be protected in all their fundamental “privileges” and “immunities” — that is, in all their most essential rights and freedoms. The Amendment explicitly protected these fundamental freedoms against states (“No state shall . . .”), but its drafters and ratifiers also believed and said that the federal government was equally obliged to respect these fundamental rights. Reconstruction Republicans insisted that these fundamental rights inhered in the very fact of American citizenship. These rights thus found shelter in the sweeping text of the Fourteenth Amendment’s first sentence, which proclaimed all those born or naturalized in America to be full and equal citizens at both the state and federal level. To be a citizen was ipso facto to have fundamental rights, and this basic principle went without saying where rights against the federal government were concerned….

The Fourteenth Amendment did not itemize the privileges and immunities of American citizenship. Instead, like the Ninth, the Fourteenth invited interpreters to pay close attention to fundamental rights that Americans had affirmed through their lived experience and had memorialized in state bills of rights and in other canonical texts such as the Declaration of Independence and landmark civil rights legislation. And when it came to guns, a landmark companion statute to the Fourteenth Amendment, enacted by Congress in 1866, declared that “the right . . . to have full and equal benefit of all laws . . . concerning personal liberty [and] personal security . . . including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens.” Here, in sharp contrast to the general tenor of Founding-era legal texts, the “bear arms” phrase was decisively and undeniably severed from the military context in a high-profile legal setting. Women as well as men could claim a “personal” right to protect their “personal liberty” and “personal security” in their homes. (Note the Fourth Amendment–style language and imagery infusing this restatement of the “bear arms” rights.) The Reconstruction-era Congress emphasized that Southern blacks might need guns in their homes to protect themselves from private violence in places where they could not rely on local constables to keep their neighborhoods safe. When guns were outlawed, only outlaw Klansmen would have guns. This critical chapter in the history of American liberty furnishes compelling evidence of an individual right to have a gun in one’s home, regardless of the original meaning of the Second Amendment.

Given the eloquence, power, and force of Judge Wilkinson’s usual evocation of the compelling meaning of the 14th Amendment, his failure to consider the large impact of that Amendment on the meaning of the 2nd Amendment leaves a disappointing and uncharacteristic hollowness at the core of his Heller criticism.

UPDATE [9 December]

Nelson Lund of the George Mason law school and David Kopel of the Independence Institute have a similar, but much more thorough, criticism of Judge Wilkinson’s Heller critique, Unraveling Judicial Restraint: Guns, Abortion, and the Faux Conservatism of J. Harvie Wilkinson, III, here. That link will take you to the abstract; you can download the full text here.

Say What?