Lots of people are commenting on D.C. v. Heller. John Eastman, the dean of Chapman University School of Law in in Anaheim, Calif., focused on the decision’s methodology.
According to his e-mailed statement:
“One of the most interesting aspects of the Heller decision, in my view, has nothing to do with the Second Amendment but with the Court’s methodology. Every one of the Justices — the five who joined Justice Scalia’s majority opinion, and the 4 who joined Justice Stevens’ dissenting opinion, agreed that the original understanding of the Amendment was dispositive. They just disagreed on what the original understanding was. This stands in stark contrast to the Louisiana “Death Penalty for Rape” decision handed down [Wednesday], in which Justice Kennedy, writing for the majority, said that the 8th Amendment of the Constitution does not turn on the original understanding but rather on the Court’s own view of evolving standards of decency.”
So the "originalist" view ginned up by the Federalist Society in the 1980s is a sound doctrine for Constitutional interpretation when a majority of Justices decide it is, but a cramped right-wing ploy to avoid reaching contemporary results beyond a dry old document without such a majority?
Posted by: Jeff Spangler | June 27, 2008 at 05:04 PM