Courting Disaster

My old pal Richard Posner is in the news. He wrote a piece in The New Republic arguing Justice Scalia's opinon in the Heller Second Amendment case went too far. As he puts it:

...Scalia and his staff labored mightily to produce a long opinion (the majority opinion is almost 25,000 words long) that would convince, or perhaps just overwhelm, the doubters. The range of historical references in the majority opinion is breathtaking, but it is not evidence of disinterested historical inquiry. It is evidence of the ability of well-staffed courts to produce snow jobs.

Posner is essentially saying Scalia, in finding an individual right to bear arms, is doing the kind of judicial interpretation he's attacked in the past. This debate was broadcast further by The New York Times: "Ruling on Guns Elicits Rebuke From the Right." Posner, along with Judge J. Harvie Wilkinson III, argues that Heller is the right's version of Roe--both decisions try to resolve a controversial issue by circumventing the political process.

Posner is arguing for pragmatism--that courts should be aware of the effects their opinions have in the real, political world. He may be right, I really can't say. But does the kind of "loose" interpretation he favors add up to a pragmatic approach? Perhaps it's best to let the democratic process work things out, but don't the words of the Constitution mean something, and don't the Courts sometimes owe the public--on pragmatic grounds alone--a clear statement of what that is?