The least discussed element of District of Columbia v. Heller might ultimately be the most important: the battle between the majority and dissent over the use of categoricalism and balancing in the construction of constitutional doctrine. In Heller, Justice Scalia’s categoricalism essentially prevailed over Justice Breyer’s balancing approach. But as the opinion itself demonstrates, Second Amendment categoricalism raises extremely difficult and still-unanswered questions about how to draw and justify the lines between protected and unprotected “Arms,” people, and arms-bearing purposes. At least until balancing tests appear in Second Amendment doctrine—as they almost inevitably will—the future of the Amendment will depend almost entirely on the placement and clarity of these categories. And unless the Court better identifies the core values of the Second Amendment, it will be difficult to give the categories any principled justification.
Heller is not the first time the Court has debated the merits of categorization and balancing, nor are Justices Scalia and Breyer the tests’ most famous champions. Decades ago, Justices Black and Frankfurter waged a similar battle in the First Amendment context, and the echoes of their struggle continue to reverberate in free speech doctrine. But whereas the categorical view triumphed in Heller, Justice Frankfurter and the First Amendment balancers won most of their battles. As a result, modern First Amendment doctrine is a patchwork of categorical and balancing tests, with a tendency toward the latter. The First and Second Amendments are often presumed to be close cousins, and courts, litigants, and scholars will almost certainly continue to turn to the First Amendment for guidance in developing a Second Amendment standard of review. But while free speech doctrine may be instructive, it also tells a cautionary tale: Above all, it suggests that unless the Court better identifies the core values of the Second Amendment, the Second Amendment’s future will be even murkier than the First Amendment’s past.
This Article draws the Amendments together, using the development of categoricalism and balancing tests in First Amendment doctrine to describe and predict what Heller’s categoricalism means for the present and future of Second Amendment doctrine. It argues that the Court’s categorical line drawing in Heller creates intractable difficulties for Second Amendment doctrine and theory and that the majority’s categoricalism neither reflects nor enables a clear view of the Amendment’s core values, whatever they may be.
In his James Madison Lecture, Judge Robert A. Katzmann argues that federal courts have much to learn from Congress and agencies about how statutes should be interpreted. In the voluminous discussion of how courts should construe statutes, there has generally been little consideration given to an appreciation of how Congress actually functions; how Congress signals its meaning; and what Congress expects of those interpreting its laws. In examining that lawmaking process, Judge Katzmann looks to how legislators signal their legislative meaning to the first inter- preters of statutes—agencies—and to how agencies regard Congress’s work product in interpreting and executing the law. He contends that Congress intends that its work be understood through its institutional processes and reliable legisla- tive history. In our constitutional system in which Congress is charged with enacting laws, the methods by which Congress makes its purposes known—through text and reliable accompanying materials—should be respected, lest the integrity of legislation be undermined. Agencies well appreciate and are responsive to Congress’s perspective that such materials are essential to construing statutes. By understanding statutory interpretation as an enterprise involving other institutions, we can better address the question of how courts ought to interpret statutes. Against that background, Judge Katzmann examines two approaches to the judicial inter- pretation of statutes—purposivism and textualism—and concludes with a discus- sion of practical ways in which Congress may better signal its meaning and how courts may better inform Congress of the problems courts identify in the statutes they review.
This Article explores how the path of the common law shaped some of the Supreme Court’s most important decisions regarding constitutional remedies. The Article first introduces the original system of common law remedies for constitutional rights. It then explains how these remedies atrophied, both doctrinally and pragmatically, and how this posed deep problems for the constitutional rights that depended on them. The Article selects three cases—Mapp v. Ohio, Monroe v. Pape, and Bivens v. Six Unknown Named Agents—to demonstrate how concerns about those remedies shaped constitutional rights. These cases have been debated many times over, but for all the debate, there has been scarce attention paid to the problem the Court was addressing: the relationship between the Constitution and common law remedies and, more specifically, what to do about constitutional rights that depended on dwindling common law remedies. Indeed, this relationship hardly receives any attention in classrooms or scholarship today, yet it is at the core of the judiciary’s role in implementing the Constitution. This descriptive gap has distorted our normative debate about the relative merits of these cases. The last part of the Article suggests four potential methodologies for coherently managing the relation- ship between the Constitution and common law remedies.
In the Seventeenth Annual Justice William J. Brennan, Jr. Lecture on State Courts and Social Justice, Paul J. De Muniz, Chief Justice of the Oregon Supreme Court, discusses the challenges confronting state judiciaries in the face of economic crises and corresponding state budget cuts. Chief Justice De Muniz urges state court leaders to adopt the concept of reengineering to overhaul antiquated court management processes in favor of more efficient alternatives. Drawing from the Oregon state judiciary’s own efforts, Chief Justice De Muniz identifies court governance structures, case administration, essential court functions, and leadership as key targets in any successful reengineering endeavor.