[Volokh] David Bernstein: The Scholarly Nature of Heller:

[notify at powerblogs.com]

Posted by David Bernstein:
The Scholarly Nature of Heller:
http://volokh.com/archives/archive_2008_06_22-2008_06_28.shtml#1214503226


   Jim notes that the opinions in Heller are very scholarly, especially
   with reference to historical sources. This marks a vast improvement in
   Supreme Court opinion writing. Consider, by contrast, the Supreme
   Court's use of history when it was issuing some of the most
   consequential decisions in its history, those requiring that every
   state reapportion each legislative house on one person, one vote
   principles. In Gray v. Sanders (1963), Justice William O. Douglas
   wrote, without further elaboration, that the political philosophy of
   "the Gettysburg Address, Declaration of Independence, 15th, 17th, and
   19th Amendments 'can mean only one thingâone person, one vote.'" Never
   mind that a close reading of all or any of those writings suggests
   that they don't have anything at all to say about whether one-person,
   one-vote is a required, or even the best, way to apportion
   legislatures. This casual misuse of history not only failed to offend
   the Court, it was quoted favorably by Chief Justice Earl Warren the
   following year in Reynolds v. Sims.

   One can level many criticisms at the modern Court, especially its
   self-aggrandizing tendency to think that it is not only the last word,
   but the only word, on constitutional interpretation. But the scholarly
   quality of the opinions has never been higher.