Alasdair MacIntyre on the Supreme Court

In the last post, I highlighted Jack Balkin’s argument that the Heller case was a response via the Courts to grassroots political activism, party politics/ideology, and public opinion.  Part and parcel of the conservative movement.  He articulates a very perceptive (imo) way of observing and understanding this pattern of events.

But I was reading this passage this morning on the bus from MacIntyre’s classic After Virtue.  For an analysis of MacIntyre’s ethics/political philosophy here, see especially pts. 1-7. It struck home the meta point as to why the structure Balkin articulates is inevitably the case in a society in which there are no agreed upon first moral principles.  What MacIntyre predicts a court truly functions as (peacekeeper of the brutal war of domestic politics) is certainly the case in the end result of Heller.

The Supreme Court in Bakke as on occasion in other cases played the role of a peacemaking or truce keeping body by negotiating its way through an impasse of conflict, not by invoking our shared moral first principles.  For our society as a whole has none.

What this brings out is that modern politics cannot be a matter of genuine moral consensus.  And it is not.  Modern politics is civil war carried on by other means, and Bakke was an engagement whose antecedents were at Gettysburg and Shiloh.

MacIntyre then quotes Adam Ferguson:

We are not to expect the laws of any country are to be framed as so many lessons of morality…Laws, whether civil or political, are expedients of policy to adjust the pretensions of parties [Balkin’s point], and to secure the peace of society.

After Virtue, pp.253-254

[Edit:  No more Heller posts, I promise].

Published in: on June 27, 2008 at 4:58 pm  Leave a Comment  
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J. Balkin on Heller

Following up on the point made by his colleague Sanford Levinson, Balkin (author of combination originalist and living constitutionalism) sees the living constitutional permeating Scalia’s majority opinion.

Despite its long and occasionally dreary originalist exegesis, the Heller majority is not really defending the values of 1791. It is enforcing the values of 2008. This is no accident. Indeed, the result in Heller would have been impossible without the success of the conservative movement and the work of the NRA and other social movement actors who, over a period of about 35 years, succeeded in changing Americans’ minds about the meaning of the Second Amendment, and made what were previously off-the-wall arguments about the Constitution socially and politically respectable to political elites. This is living constitutionalism in action.

Like Lawrence v. Texas, Heller is another example of how the Supreme Court exercises judicial review in response to successful social and political mobilizations, regardless of what individual Justices understand themselves to be doing. The only difference is that in Heller, it is conservatives who have successfully changed public opinion, a change that has now become reflected in Supreme Court opinions.

Read the whole thing.

Final result:

No matter how much the arguments in Boumediene and Heller are dressed up in originalist garb, they show us that that living constitutionalism is alive and well. In each case the Supreme Court revises existing law to match changes in public opinion.

For Balkin’s very deft and penetrating analysis of the relationship between the Court, political movements, and the ballot box, here.

Published in: on June 27, 2008 at 4:41 pm  Comments (1)  
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Sandford Levinson on Heller Vs. DC

A “dismaying performance” by the Court, on all sides.

Levinson points out that both John Paul Stevens (who authored the dissent, i.e. the liberal) and Antonin Scalia (authored the majority opinion, the conservative) assume an originalist reductionistic view of 2nd Amendment.  Stevens stating that the record unequivocally against, Scalia for.


If one had any reason to believe that either Scalia or Stevens were a competent historian, then perhaps it would be worth reading the pages they write. But they are not. Both opinions are what is sometimes called “law-office history,” in which each side engages in shamelessly (and shamefully) selective readings of the historical record in order to support what one strongly suspects are pre-determined positions. And both Scalia and Stevens treat each other — and, presumably, their colleagues who signed each of the opinions — with basic contempt, unable to accept the proposition, second nature to professional historians, that the historical record is complicated and, indeed, often contradictory. Justice Stevens, for example, writes that anyone who reads the text of the Second Amendment and its history, plus a murky 1939 decision of the Court, will find “a clear answer” to the question of whether the Second Amendment supports a “right to possess and use guns for nonmilitary purposes.” This is simply foolish. Neither Scalia nor Stevens pays any real attention to a plethora of first-rate historical work written over the past decade that challenges this kind of foolish self-confidence.

This overly certain originalist position is particularly self-defeating for Scalia because:

What is especially ironic is that the strongest support for Scalia’s position comes from acknowledging that the Second Amendment, like the rest of the Bill of Rights, has been “dynamically” interpreted and has taken on some quite different meanings from those it originally had. Whatever might have been the case in 1787 with regard the linkage of guns to service in militias — and the historical record is far more mixed on this point than either Scalia or Stevens is willing to acknowledge — there can be almost no doubt that by the mid-19th century, an individual right to bear arms was widely accepted as a basic attribute of American citizenship.


Published in: on June 27, 2008 at 4:34 pm  Comments (1)  
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