Tag Archives | Constitutional History

Was Heller comparable to Roe v. Wade?

 So argued the eminent Fourth Circuit Judge J. Harvie Wilkinson, III, in Of Guns, Abortions, and the Unraveling Rule of Law, recently published in the Virginia Law Review. In Unraveling Judicial Restraint: Guns, Abortion, and the Faux Conservatism of J. Harvie Wilkinson, III, Nelson Lund and I disagree, arguing that none of Judge Wilkinson’s comparisons to Roe are accurate, and that Heller is no more of an “activist” decision than any other decision protecting an enumerated right. The final version of our article, forthcoming in the University of Virignia Journal of Law and Politics, is now available on SSRN. […]

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Justice Brandeis

The New York Times has published two reviews of Mel Urofsky’s new biography of Louis Brandeis.  I haven’t seen the book yet, but Mel had sent me the page proofs of several chapters earlier this year, and they were great.

Whiles the parts of the book I read struck me as admiring but with appropriate cautionary notes, Brandeis hagiography otherwise appears alive and well.  In his review of the book,  Alan Dershowitz writes that “the First Amendment’s right of free expression, the Fourth Amendment’s right to privacy and the due process clause’s focus on personal liberty (rather than property) all owe their current vitality to the creative genius of Justice Brandeis.”

With some reservations (Brandeis’s view of the First Amendment was much more utilitarian, in the sense of supporting free speech because he thought it would lead to further Progressive reform, than modern, more libertarian-oriented doctrine), I’ll concede the First Amendment point.

But Brandeis was no great hero of the Fourth Amendment. Brandeis, of course, authored a famous dissent in the 5-4 decision in Olmstead v.  United States,  holding that the fourth amendment prohibits warrantless wiretapping.  But Brandeis was not a consistent advocate of a broad Fourth Amendment.  For example, in Carroll v. United States, 267 U.S. 132 (1925), the Supreme Court upheld a warrantless search of a car on suspicion of transporting alcohol.  The majority, including Justice Brandeis, concluded that automobiles are distinct from private dwellings for Fourth Amendment purposes.  Justice McReynolds, joined by Justice Sutherland, dissented.  More generally, the most consistent advocates of Fourth Amendment protections against the excesses of Prohibition enforcement came from several of the “conservative” Justices, especially Justice Pierce Butler, with Brandeis consistently voting in favor of the government.

When the liberal Warren Court chose to strictly enforce the Fourth Amendment, it naturally […]

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