A classic work of this form of conservatism is Paul Johnson’s Modern Times: The World from the Twenties to the Eighties. Published in 1983 and subsequently updated in 1991, Johnson’s book was immediately recognized as a major revisionist work of history from an intelligent and shrewd conservative perspective. Even though we are no longer threatened by the totalitarian regimes of the 20^th century, Modern Times has lessons that should continue to resonate with conservatives as they confront the issues of our time. From this work we can gain insight into the enduring problem of limiting omnivorous state power and the difficulty of restraining what Charles de Gaulle once identified as “America’s itch to intervene” in problems throughout the world.

Johnson is a prolific British journalist and historian who, prior to this volume, had published, among many other books, the well-received A History of Christianity (1976). Modern Times surveys the blood-drenched history of the last century within the context of an arresting thesis:

Among the advanced races, the decline and ultimately the collapse of the religious impulse would leave a huge vacuum. The history of modern times is in great part the history of how that vacuum had been filled. Nietzsche rightly perceived that the most likely candidate would be what he called the “Will to Power”, which offered a far more comprehensive and in the end more plausible explanation of human behaviour than either Marx or Freud. In place of religious belief, there would be secular ideology. Those who had once filled the ranks of the totalitarian clergy would become totalitarian politicians. And, above all, the Will to Power would produce a new kind of messiah, uninhibited by any religious sanctions whatever, and with an unappeasable appetite for controlling mankind. The end of the old order, with an unguided world adrift in a relativistic universe, was a summons to such gangster-statesmen to emerge. They were not slow to make their appearance.

Johnson’s panorama of the rise and misrule of Lenin, Hitler, Stalin, Mao, and a host of murderous imitators is a tour de force of factual compression, narrated with muscular, riveting prose. Johnson identifies the totalitarians with a new morality that abandoned the concept of individual responsibility derived from Judaism and Christianity. Thus, one genocidal frenzy followed another:

Once Lenin had abolished the idea of personal guilt, and had started to “exterminate” (a word he frequently employed) whole classes, merely on account of occupation or parentage, there was no limit to which this deadly principle might be carried. Might not entire categories of people be classified as “enemies” and condemned to imprisonment or slaughter merely on account of the colour of their skin, or their racial origins or, indeed, their nationality? There is no essential moral difference between class-warfare and race-warfare, between destroying a class and destroying a race. Thus the modern practice of genocide was born.

An especially attractive feature of Modern Times is the fact that Johnson is intensely—and often amusingly—opinionated. For example, of the early twentieth-century French, he observes: “If Paris was the world capital of Cartesian reason, it was also the capital of astrology, fringe-medicine and pseudo-scientific religiosity. There was (indeed still is) a strong anti-rationalist culture in France.” Moreover, he is devastating about the vastly overrated political darlings of the third world: “Gandhi’s eccentricities appealed to a nation which venerates sacral oddity…. About the Gandhi phenomenon there was always a strong aroma of twentieth-century humbug.”

But Johnson’s robust, countercultural opinions are most welcome on American matters. In a century marked by murderous tyranny and political lunacy, two temperamentally moderate and politically conservative men exercised power in the presidential office in a way that is directly relevant to Republican aspirations today.

Johnson first rescues Calvin Coolidge from liberal scorn or indifference. In the chapter titled “The Last Arcadia,” Johnson shows that Coolidge was a master of political restraint, who presided over an ever-increasing growth and spread of economic prosperity. Johnson is unequivocal in his admiration: “Yet if Coolidge was sparing of words, what he did say was always pithy and clear, showing that he had reflected deeply on history and developed a considered, if sombre, public philosophy. No one in the twentieth century . . . defined more elegantly the limitations of government and the need for individual endeavour, which necessarily involved inequalities, to advance human happiness.”

Coolidge was an exemplar of the limited state. Without intrusive state intervention, the American economy boomed with entrepreneurial energy, and automobiles, radios (and other electrical products), and housing were produced at unprecedented levels. In his last public message to Congress, Coolidge accurately summarized what he had presided over: “The great wealth created by our enterprise and industry, and saved by our economy, has had the widest distribution among our own people, and has gone out in a steady stream to serve the charity and business of the world.” The success of the Coolidge years is highlighted by the statist and economically stagnant period that followed. These lessons on the importance of wealth creation rather than redistribution were absorbed by Ronald Reagan (a Coolidge admirer) and would serve any contemporary Republican very well.

The presidency of Dwight Eisenhower is Johnson’s second act of rehabilitation. His verdict is succinctly stated: “Eisenhower was the most successful of America’s twentieth-century presidents, and the decade when he ruled (1953-61) the most prosperous in American, and indeed world, history.” America under Eisenhower was also a superpower that used its power wisely—that is, with an understanding, as Johnson says, that “the security of freedom throughout the world rested ultimately on the health of the American economy.” Or as Eisenhower said with characteristic good sense, “There is no defense for any country that busts its own economy.”

Johnson admires Eisenhower’s restraint in foreign affairs, and contrasts that approach with the vastly more ambitious view of American power in the world propounded by John F. Kennedy (“pay any price, bear any burden”). In what Johnson correctly calls a statement of the “classical American attitude,” Secretary of State John Quincy Adams in 1821 observed, “Wherever the standard of freedom and independence has been or shall be unfurled, there will be America’s heart, her benedictions and her prayers.” But “she goes not abroad in search of monsters to destroy. She is the well-wisher to the freedom and independence of all. She is the champion and vindicator only of her own.” This is precisely the approach taken by Eisenhower.

And an approach to which we must return. We have searched for too many monsters to destroy in recent years, especially in Iraq and Afghanistan, both of which were and remain Wilsonian experiments, fueled by unrealistic expectations about the capacity of American military power to establish stable governments in notoriously chaotic countries. (It is impossible to imagine either war being pursued by Eisenhower.) The next Republican presidential nominee ought to embrace Eisenhower’s discriminating exercise of American military force within the context of a healthy economy.

Predictably, such an approach will be loudly stigmatized as isolationism, but that accusation will be wide of the mark. The situation in Afghanistan illustrates how this restrained foreign policy should work. There is no doubt that the use of American military power in Afghanistan after the terrorist attacks of 9/11 was warranted. However, a massive American military presence in that country a decade later is supported by no convincing argument of national interest. Building nations is emphatically not a conservative use of military power.

Johnson has published a great deal of work since Modern Times. For example, A History of the American People (1997) is an ambitious and satisfying volume. Art: A New History (2003) is a discerning and highly readable account of this complex topic. In an era of scholarly specialization and fragmentation, Johnson’s comprehensive approach to big subjects is impressive. None of those works, however, equals the dazzling erudition of Modern Times. It is a book that has influenced conservative thinkers for decades now—and should continue to do so with its identification of a clear American tradition, as necessary today as ever, of limited government and a foreign policy that protects national interests and eschews expensive messianic crusades.


Gregory J. Sullivan is a lawyer in New Jersey. He has written for The Weekly Standard and First Things.

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Feldman, who teaches at Harvard Law School, has a great story here (or, more precisely, four great stories), and he tells it well. All these men came from obscure backgrounds and rose to great prominence under Roosevelt. With their judicial appointments, they became the core of the liberal bloc that pulled the Court out of the way of the New Deal. It was not, however, a serene arrangement: “Beginning as allies, they would become enemies, each with his own theory of how to understand the Constitution,” Feldman writes. Their fierce and consequential struggles made them the scorpions of Feldman’s title.

Feldman provides vivid biographical portraits of all these men, but what makes this book more than biography is the emphasis he places on the development of the judicial philosophy of each of his subjects.

Hugo Black brought what Feldman intriguingly calls “the distinctively Protestant method of biblical interpretation that he had used for two decades as a Sunday school teacher in Birmingham” to his reading of the Constitution and became the “inventor of originalism.” To be sure, it was in many ways a crude originalism, particularly with respect to Black’s obtuse no-law-means-no-law reading of the first amendment. Still, Black steered clear of many of the excesses of the Warren Court because of his adherence to constitutional text.

For many years, William Douglas cared more for his presidential ambitions than his judicial work, but once it was clear that the Court was where he would have to make his name, he pursued the extreme libertarianism that became his hallmark. The problem for him was his abrasive and irascible personality, which alienated his colleagues and essentially eliminated any influence he might have had on the direction of the Court. His autonomy-obsessed individualism, however, was later adopted by William Brennan, whose smooth and accommodating personality turned it into majorities during the Warren Court.

Robert Jackson eschewed a comprehensive judicial philosophy in favor of a pragmatic jurisprudence. His influence was predicated on his extraordinary facility as a writer and his problem-solving approach to cases. Jackson’s skill as a judicial rhetorician is most conspicuously on display in Barnette, the 1943 case that struck down a compulsory flag salute and rejected Frankfurter’s controversial three-year-old Gobitis opinion, which upheld a compulsory flag salute. Moreover, Jackson’s pragmatism made him especially adept at sorting out the nebulous issues of executive power. His concurring opinion in the 1952 steel-seizure case, which thwarted President Truman’s seizure of the steel industry, remains a central precedent on the breadth of presidential authority.

Feldman is especially refreshing in his analysis of Felix Frankfurter. He correctly sees Frankfurter’s principled judicial restraint as the stumbling block for many in accurately assessing his jurisprudence: “As the other liberals on the Court shifted ground, Frankfurter—to his astonishment—found himself transformed into a conservative. Frankfurter’s critics, then and later, have tried to explain how it could be that the country’s best-known liberal became its leading judicial conservative. But the source of the change was not Frankfurter, whose constitutional philosophy remained remarkably consistent throughout his career. It was the rest of liberalism that abandoned him and moved on once judicial restraint was no longer a useful tool to advance liberal objectives.”

Feldman’s narrative closes with the four scorpions all putting their intense differences aside in order to effect the unanimity of Brown v. Board of Education in 1954. Although routinely lauded now as a great act of judicial statesmanship—a view shared by Feldman—the case was in fact an act of great intellectual dishonesty for Black, Jackson, and Frankfurter, all of whom recognized that the Court was acting outside of constitutional law and in an exclusively political way. (The results-driven Douglas had no problem with Brown’s shoddy extra-constitutional rationale.) Thus, the scorpions established a model for judicial supremacy that has made usurpation an insufferably standard practice for the Court.

Brown has become the sacred text of living constitutionalism, a freewheeling interpretive approach that would have been anathema to Black, Jackson, and Frankfurter.  It is difficult to imagine the later revolutionary judicial decisions on contraception, abortion, and homosexual rights without it: the enlightened jurist, believing that he is acting with the boldness and moral clarity of Brown, removes an issue from the reactionary messiness of democratic contention and resolves it once and for all along progressive lines.  That is the baneful legacy of Brown.

With the exception of Douglas, all these men made genuine, and often brilliant, contributions to constitutional law, as Feldman’s accessible book establishes. But the decades following the departure of Roosevelt’s jurists demonstrate that the catastrophic legacy of Brown—the superstition that the Court can, with one case, resolve a complex political problem—undermines these achievements and continues to cause grave damage to the constitutional order that these men did so much to shape.


Gregory J. Sullivan is a lawyer from Pennsylvania. He has written for First Things and The Weekly Standard.

Copyright 2011 the Witherspoon Institute. All rights reserved.

This biography confirms the most essential point about the internal workings of the Warren Court. Although the Court was nominally under the leadership of Chief Justice Earl Warren, the revolutionary jurisprudence that emanated in such profusion from it was orchestrated by Brennan. Though not a profound thinker, Brennan knew exactly where he wanted the Court to go. He used his considerable charm and shrewd capacity for self-effacement to form the majorities that transformed judicial review into the most potent instrument of liberal social engineering in American government.

Brennan’s interpretive approach was to consider the Constitution a “living” document that should be construed with current, as opposed to original, meaning. When the Constitution lives, judicial discretion is maximized. In one area of law after another, Brennan used this virtually boundless discretion to make his extremely left-wing policy preferences those of the nation—not all at once but carefully, incrementally. It was a revolution in slow motion. Brennan cared very little for the legal reasoning required in a case: whatever his clerks could use to justify the result he wanted and keep a majority together sufficed for him.

Abortion is the classic example of this process. The abortion license established in Roe v. Wade in 1973 was of course made possible by the right to privacy invented by Justice William Douglas in the notorious Griswold v. Connecticut in 1965. As Stern and Wermiel write: “There was no better example of the silent hand of Brennan shaping an opinion during this period than the case of Griswold v. Connecticut, a 1965 decision on contraception that laid the foundation for the constitutional right to privacy.” Stern and Wermiel continue:

Brennan did not create the notion of finding a right to privacy implicit in provisions of the Bill of Rights. The intellectual parentage belongs, perhaps, to Douglas for his dissenting opinion in Poe v. Ullman, or perhaps to the briefs filed in Poe by [counsel]. But the always pragmatic Brennan perceived that expanding the legal concept of freedom of association to include marital association [the initial view of Douglas] might undermine the strength of that constitutional right. He understood as well that the idea of association would not provide the strongest foundation for a right to personal privacy. With this ability to see the bigger picture, he successfully shifted the focus of the Court’s reasoning by persuading Douglas to take a different approach.

The “different approach” allowed Brennan subsequently to use Griswold to expand the right to privacy well beyond the sanctity of the marital bedroom emphasized in that case to include other rights, particularly abortion. In the 1972 Eisenstadt v. Baird, Brennan wrote an opinion for the Court that constructed the decisional bridge from Griswold to Roe: “After mulling a narrow decision,” note Stern and Wermiel, “he opted to use the case, Eisenstadt v. Baird, as a vehicle for extending to unmarried people the right of privacy he had helped Douglas propound in Griswold for married couples.” As Brennan wrote in a memorandum to Douglas at the time: “Incidentally, Eisenstadt in its discussion of Griswold is helpful in addressing the abortion question.”

Just as Brennan adroitly worked on Douglas in Griswold to create a right to privacy, he manipulated the timid Justice Harry Blackmun in Roe to create an abortion-on-demand regime. Blackmun’s name will forever be associated with Roe, but Brennan’s role in that case was central. As Stern and Wermiel comment: “Brennan felt a strong enough sense of ownership in the Roe and Doe opinions that his clerks included them in the bound volume of his opinions for the term Brennan maintained for his own use. The accompanying note explained that the opinions ‘were substantially revised in response to suggestions made by Justice Brennan.’”

One major area where Brennan failed in imposing his personal view was in his embarrassing crusade to have the death penalty declared unconstitutional. Although capital punishment is explicitly and unambiguously sanctioned by constitutional text and history, Brennan announced that its use in all cases violated the eighth amendment’s prohibition on cruel and unusual punishments because it offended what he called “human dignity,” a conveniently amorphous concept invoked by him when constitutional text and history stood in his way.

But he never went after the death penalty with the ideological wiliness he used in the case of abortion. That is a campaign that his successors have embraced. The revolution-in-increments method that Brennan used so effectively on a host of issues has been employed with great success by the current Court in its assault on capital punishment. In Atkins v. Virginia (2002), for example, the Court ruled the death penalty unconstitutional for a criminal who is mentally retarded. In Roper v. Simmons (2005), capital punishment for juveniles was declared beyond the constitutional pale. Most recently, in Kennedy v. Louisiana (2008), the death penalty was determined to be an unconstitutional punishment for the bestial crime of child rape.

These decisions have nothing to do with the eighth amendment. In his astute dissent in Atkins, Justice Antonin Scalia stated what is manifestly true with respect to all these decisions: “Seldom has an opinion of this Court rested so obviously upon nothing but the personal views of its members.” The Court now routinely invokes the elastic Brennanite standard of “human dignity” along with a reliance on the equally Rorschach-like authority of European law to reject capital punishment in an ever-expanding category of cases. Eventually, of course, capital punishment will be so restricted as to be de facto abolished. Whatever else that result may be, it will not be what any reasonable observer would consider constitutional law.

Scalia has correctly remarked that Brennan was “probably the most influential justice of the century.”  And his vast influence has been a bane to our constitutional order. In case after case, with no tenable basis in constitutional text or history, Brennan supplanted the policy choices of elected representatives with his own views. Every contentious policy issue that is decided by the Court’s current wing of living constitutionalists (Justices Breyer, Ginsburg, Sotomayor, Kagan, and, frequently, Kennedy) reflects Brennan’s enduring influence. The subtitle of Stern and Wermiel’s biography identifying Brennan as a “liberal champion” is entirely apposite: he was a jurist committed not to the rule of law but to political ideology—a corruption of the judicial branch that continues to afflict us.

Gregory J. Sullivan is a lawyer who practices in New Jersey. He has written for First Things and The Weekly Standard.

Copyright 2010 the Witherspoon Institute. All rights reserved.

Although gun-rights enthusiasts are understandably elated by this result, anyone who views original understanding in constitutional interpretation and modesty in the exercise of judicial power as quintessential judicial virtues must be deeply troubled. The Court’s plurality opinion, written by Justice Alito, eschews original understanding and reflects a lack of fidelity to text. The concurrence by Justice Thomas illustrates the peril of jurists misconstruing complex historical materials.

Building on the historically dubious conclusion that the Second Amendment (“a well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed”) contains an individual as opposed to a militia-related right to bear arms established in District of Columbia v. Heller (2008), the McDonald Court determined that the right discovered in Heller was sufficiently fundamental to be incorporated into the due-process clause of the fourteenth amendment and applied to the states. Now all gun regulations, whether enacted in the District of Columbia or by any state or municipal government, are subject to review by federal courts.

A textually unambiguous guarantee of procedural fairness, the due-process clause (“nor shall any state deprive any person of life, liberty, or property, without due process of law”) has of course been abused as a seemingly inexhaustible source of substantive rights invented by the Court over the years. It has also been the means by which the Court has taken certain protections in the Bill of Rights and applied them against state and local governments. Since 1897, the Court has engaged in “selective incorporation,” the piecemeal incorporation of protections found in the Bill of Rights. In McDonald, a plurality of the Court invoked this precedent to reach the result it wanted.

The problem is that the jurisprudence of incorporation has no bearing on the due-process clause. As Justice Thomas pointed out, “All of this is a legal fiction. The notion that a constitutional provision that guarantees only ‘process’ before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of words.” Yet Thomas agreed that the Heller reading of the second amendment should be incorporated. Rather than the plain dishonesty of using the due-process clause of the fourteenth amendment for that purpose, however, Thomas argued that the only sound textual course was to use the privileges-or-immunities clause of that same amendment (“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”).

The flaw with Thomas’s opinion is a real shortcoming in original-understanding interpretation. Working through dense historical materials—and the Fourteenth Amendment’s history is dense—is not something lawyers are trained to do. Thomas made a characteristically principled argument that incorporation was originally designed to take place through the privileges-and-immunities clause. The problem is that his history is all wrong. The most distinguished legal historian at work today is Philip Hamburger (author of the erudite books Separation of Church and State and Law and Judicial Duty), and his forthcoming article in the Northwestern University Law Review conclusively demonstrates that comity-clause rights for free blacks, not incorporation, was the original understanding of the clause. This point is not to argue against any historical inquiry—text and history are the only legitimate sources of constitutional meaning—but it is the reason why judicial modesty is utterly essential when law-office history brings about a revolution in our understanding of the regulation of guns.

There is no question that McDonald dramatically expands judicial power. This decision, in complete absence of textual or historical warrant to move into this area, will result in federal judges exercising what are fundamentally legislative judgments in all areas of gun policy. In his dissenting opinion, Justice Breyer provides a realistic sampling of the questions that will need to be addressed in future litigation:

Consider . . . that countless gun regulations of many shapes and sizes are in place in every State and in many local communities. Does the right to possess weapons for self-defense extend outside the home? To the car? To work? What sort of guns are necessary for self-defense? Handguns? Rifles? Semiautomatic weapons? When is a gun semi-automatic? Where are different kinds of weapons likely needed? Does time-of-day matter? Does the presence of a child in the house matter? Does the presence of a convicted felon in the house matter? Do police need special rules permitting patdowns designed to find guns? When do registration requirements become severe to the point that they amount to an unconstitutional ban? Who can possess guns and of what kind? Aliens? Prior drug offenders? Prior alcohol abusers? How would the right interact with a state or local government’s ability to take special measures during, say, national security emergencies?

Such is the steep price of judicial hubris.

Just as remarkably, McDonald provided no standard for reviewing the constitutionality of these questions. Once a standard is established, one can expect protracted and contentious litigation over all these sorts of questions. How the gun landscape will look in, say, ten years is anyone’s guess. While the Court asserted in Heller and repeated in McDonald that these decisions will not disturb long-established prohibitions on possession of firearms by felons and the mentally ill, bans on carrying guns into schools and government buildings, and the imposition of conditions and qualifications on the commercial sale of arms may be undermined or swept aside.

Because of McDonald, federal courts, not state and local elected officials, will now have the final word on the vast and complex area of social policy involving guns. Neither the text nor the history of the Constitution provides grounds for this radical shift in power. McDonald, alas, stands for the proposition that the excrescence of judicial legislation now has both a liberal and a conservative visage.


Gregory J. Sullivan is a lawyer in New Jersey. He has written for First Things and The Weekly Standard.

Copyright 2010 the Witherspoon Institute. All rights reserved.

In New Jersey, under the constitution promulgated in 1947, all lower-court judges and supreme-court justices are appointed by the governor. After a period of seven years, they are then eligible to be reappointed by the governor with tenure until mandatory retirement at seventy. Since 1947, no justice of the Supreme Court prior to Wallace has failed to be reappointed.

Wallace was appointed in 2002 by Gov. Jim McGreevey. His reappointment presented the first opportunity for Christie to fulfill his campaign promise to change the direction of the Supreme Court. By not reappointing Wallace (the court’s only black jurist), Christie has set off a storm of controversy. The president of the state Senate, Senator Stephen Sweeney, has announced that he will not hold confirmation hearings for Christie’s replacement, Anne Patterson, a well  respected lawyer in private practice. With three more appointments in his first term, Christie has the opportunity to reshape this seven-member tribunal.

New Jersey’s highest court has made usurpation of legislative and executive authority a hallmark of its jurisprudence. For example, the court under Chief Justice Robert Wilentz (1979-1996), the Great Helmsman of New Jersey’s culture of judicial overreaching, moved without constitutional warrant into the area of local zoning by compelling communities to provide affordable housing. Known collectively as the Mount Laurel cases, these decisions are exemplars of the court as a collection of unelected social engineers. Moreover, the court has made itself the main player in the funding of public schools with its decades-long war of attrition against local control of school funding through property taxes. The state constitution vests the court with no such authority.

This hyper-aggressive form of government by judiciary continued unabated under Wilentz’s successor as chief justice, Deborah Poritz (1996-2006). In 1999, Poritz wrote the opinion for the court in Dale v. Boy Scouts of America. Infamously, the court forced the Scouts to accept an openly homosexual leader under the state’s antidiscrimination statute. The law required nothing of the sort, but the court brushed aside carefully crafted legislative language in favor of its own policy preference of acceptance of homosexual conduct. (Subsequently, the United States Supreme Court reversed this decision under the first amendment.)

In 2000, Poritz again wrote for the court in striking down New Jersey’s law requiring parental notification for a minor seeking an abortion. Such laws have routinely been upheld under federal challenge; nevertheless, the court found that under the state constitution this requirement went too far. The constitution of course has nothing in it at all to support this decision, which is why the court relied on such authorities as a column from The New York Times by Anna Quindlen. Even by the standards of New Jersey, this decision was a striking act of judicial invention.

These decisions, and numerous others like them, reflect a court that has inflicted severe damage on the practice of representative government in New Jersey. The court has ignored its constitutional role and transformed itself into a major policy-maker in the state. These are not cases that involve close calls regarding judicial involvement; they are naked usurpations of the powers of the other branches of government.

Christie’s decision to not reappoint Justice Wallace is an attempt to return sound jurisprudence to New Jersey. And in response to his decision, there has been a wave of predictable and tedious sermons about this threat to judicial independence. But his decision not to reappoint Wallace has nothing at all to do with judicial independence. The court’s power to interpret and apply statutory and constitutional law is undisturbed. What is being challenged by Christie is the grave and protracted abuse of this legitimate power by the court in order to impose policy preferences on the state’s citizenry.

Notwithstanding this obvious point, eight retired justices of the state Supreme Court issued a dark warning about this use of the appointment authority: “No Governor before now has sought to control the third branch of government through the reappointment process.”

Christie was rightly dismissive of this pretentious silliness when asked by a reporter about it: “Well tell [the retired justices] thanks for the input. Appreciate it. But as they well know, being Supreme Court justices, the constitution very clearly vests in the governor the ability to decide who is appointed to the Supreme Court. Not to anyone else other than the governor. And certainly not to former justices of the Supreme Court who got there because a governor selected them. So I appreciate their input and I honor their service.”

As a constitutional matter, Christie has acted properly with this decision. Earl Maltz, a professor at Rutgers Law School in Camden and an excellent constitutional analyst, provided this summary of the pertinent constitutional language: “This plainly does not contemplate automatic reappointment of justices for life after the expiration of their initial seven-year terms, or even a presumption of reappointment. Rather, it implicitly calls on both the governor and the state Legislature to reevaluate the situation at the end of a seven-year term and determine whether a reappointment would be in the state’s best interests. In deciding Patterson would be a better choice than Wallace, Christie has done no more than make that value judgment.”

Conservatives have been very astute in their efforts to halt and, where possible, reverse the adventurism of federal courts. At the state level in general and in New Jersey specifically, this sort of vigilance has rarely existed. The Supreme Court has issued one radical, result-driven decision after another with no significant resistance. With Christie, the unchecked assault on majority rule by the state Supreme Court has finally begun to be checked. His decision leaves the independence of the judiciary secure. The making of policy, however, is a function that is being returned to elected officials. That is to say, the proper allocation of power under the state constitution is being restored. This vindication of the rule of law should be embraced by all New Jersey residents.


Gregory J. Sullivan is a lawyer in New Jersey. He has written for First Things and The Weekly Standard.

Copyright 2010 The Witherspoon Institute. All rights reserved.

Heller itself is the root of the problem. In that case, Justice Scalia brought together a large quantity of historical information to support the argument that the Second Amendment (“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed”) embodies an individual right not connected to military service to keep and bear arms. However, in a cogent dissent that also relied extensively on history, Justice Stevens concluded that the Amendment did not create any such individual right. While the historical record does not unambiguously point to one conclusion on such a complicated question, the Heller Court nonetheless aggressively declared a brand-new individual right.

Justice Scalia’s opinion received predictable criticism from liberals, but the most devastating critique of Heller came from the esteemed conservative federal jurist J. Harvie Wilkinson, III, of the United States Court of Appeals for the Fourth Circuit. In his trenchant analysis, “Of Guns, Abortions, and the Unraveling Rule of Law,” published in the Virginia Law Review, Wilkinson argues that Heller “represents a failure—the Court’s failure to adhere to a conservative judicial methodology in reaching its decision.”

In fact, the Court’s failure in Heller, says Wilkinson, is strikingly similar to its catastrophic decision in Roe v. Wade. Wilkinson identifies “four major shortcomings” in Heller: “an absence of a commitment to textualism; a willingness to embark on a complex endeavor that will require fine-tuning over many years of litigation; a failure to respect legislative judgments; and a rejection of the principles of federalism.” Wilkinson expects the incorporation of the Second Amendment with its Heller reading. And that extension is precisely the problem: “As courts get drawn father into the gun control thicket, they will be forced, as they were by Roe, to decide contentious questions without clear constitutional guidance.”

Even with all its flaws, the Heller decision currently applies only to the District of Columbia. That is because the Second Amendment has not—yet—been applied against the states. This process of applying the specific guarantees of the Bill of Rights, which originally were restrictions that operated against only the federal government, is known as “incorporation.”  Decades after the ratification of the fourteenth amendment in 1868, the Court began, without any textual or historical basis, the piecemeal application of various provisions of the Bill of Rights to the states through the due-process clause of that amendment (“nor shall any State deprive any person of life, liberty, or property, without due process of law”). The entire Bill of Rights is not incorporated (the Fifth Amendment’s indictment-by-grand-jury requirement, for instance, does not bind the states); we currently have what is referred to as a system of “selective incorporation.”

Incorporation represents one of the true revolutions in American politics and law. It has subverted the careful balance between federal and state power and dramatically increased the power of federal courts. It is, moreover, a judicially manufactured revolution in its entirety. With its highly dubious historical foundation, incorporation is a doctrine that originalists have rightly challenged for its absence of legitimacy even as they must live with its precedential force. Now, they are being seduced with a new theory in McDonald: the idea that incorporation of the Second Amendment should be through the privileges-or-immunities clause of the fourteenth amendment (“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”).

Historically, this clause was nullified in The Slaughter-House Cases (1873). All of the subsequent extra-textual judicial overreaching, whether through incorporation or the judicial invention of rights, has been through the due-process clause. In recent decades, however, scholars of the government-by-judiciary school have been attracted to a revival of this clause because of its vagueness. (Not only scholars: Justice Thomas, of all people, expressed interest in the clause’s resuscitation in a 1999 case.) For example, the most adroit advocate of judicial adventurism of his time, John Hart Ely, in his enormously influential book Democracy and Distrust (1980), concluded that “the most plausible interpretation of the Privileges or Immunities Clause is, as it must be, the one suggested by its language—that it was a delegation to future constitutional decision-makers to protect certain rights that the document neither lists, at least not exhaustively, nor even in any specific way gives directions for finding.”

This reading provides a very capacious abode for the judge-as-policymaker ideal that is beloved of judicial supremacists but is, or used to be, anathema to conservatives. An incorporated Heller right would mean that every gun regulation enacted by state and local governments would potentially be subject to review by federal courts, which have no expertise or guidance in this area. The serious flaws identified by Wilkinson will lead to increasingly subjective and ad hoc judicial rulings by those who, in all other contexts, are the fiercest critics of that slipshod method of judging.

The interpretive doctrine of original understanding has reached a high level of sophistication and influence, especially in the opinions of Justices Scalia and Thomas. However, it is in danger of losing its principled foundation because its most celebrated practitioners are pursuing the nationalization of an individual right to bear arms on exceedingly thin constitutional authority. Wilkinson is justified in his yoking of Heller with Roe, and once the questionable determination reached in Heller applies to every gun regulation enacted at any level of government, it will be well-nigh impossible to tell the originalists from the make-it-up-as-you-go-along crowd on the Court.

Gregory J. Sullivan is a lawyer practicing in New Jersey. He has written for First Things and The Weekly Standard.

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