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Unraveling Judicial Restraint: Guns, Abortion, and the Faux Conservatism of J. Harvie Wilkinson, III


Nelson Lund


George Mason University School of Law

David B. Kopel


Independence Institute; Denver University - Sturm College of Law

December 1, 2008

Journal of Law and Politics, Vol. 25, No. 1, pp. 1-18, 2009
George Mason Law & Economics Research Paper No. 08-61

Abstract:     
Writing in the Virginia Law Review, a distinguished federal judge maintains that true conservatives are required to substitute principles of judicial restraint for an inquiry into the original meaning of the Constitution. Accordingly, argues J. Harvie Wilkinson, III, the Supreme Court's Second Amendment decision in District of Columbia v. Heller is an activist decision just like Roe v. Wade: "[B]oth cases found judicially enforceable substantive rights only ambiguously rooted in the Constitution's text." In this response, we challenge his critique.

Part I shows that Judge Wilkinson's analogy between Roe and Heller is untenable. The right of the people to keep and bear arms is in the Constitution, and the right to abortion is not. Contrary to Judge Wilkinson, the genuine conservative critique of Roe is based on the Constitution, not on judicial "values." Judge Wilkinson, moreover, does not show that Heller's interpretation of the Second Amendment is refuted, or even called into serious question, by Justice Stevens' dissenting opinion.

Part II shows that Judge Wilkinson himself does not adhere to the "neutral principle" that he claims to derive from "judicial values." Under the principle of judicial restraint that he articulates, many now-reviled statutes, including the Jim Crow laws of the twentieth century, should have been upheld by the courts. Judge Wilkinson does not accept the consequences of his own supposedly neutral principle, preferring instead to endorse or condemn Supreme Court decisions solely on the basis of his policy preferences. That is not judicial restraint. It is judicial lawlessness.

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Date posted: December 1, 2008 ; Last revised: November 7, 2013

Suggested Citation

Lund, Nelson and Kopel, David B., Unraveling Judicial Restraint: Guns, Abortion, and the Faux Conservatism of J. Harvie Wilkinson, III (December 1, 2008). Journal of Law and Politics, Vol. 25, No. 1, pp. 1-18, 2009; George Mason Law & Economics Research Paper No. 08-61. Available at SSRN: http://ssrn.com/abstract=1309714

Contact Information

Nelson Robert Lund (Contact Author)
George Mason University School of Law ( email )
3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-8045 (Phone)
David B. Kopel
Independence Institute ( email )
727 East 16th Ave
Denver, CO 80203
United States
303-279-6536 (Phone)
303-279-4176 (Fax)
HOME PAGE: http://www.davekopel.org
Denver University - Sturm College of Law
2255 E. Evans Avenue
Denver, CO 80208
United States
HOME PAGE: http://www.davekopel.org
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