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Wise restraints that make us free

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Justice Scalia, in his usual style, writes a scathing review of Justice Stevens' dissent in the McDonald case. His main problem is that Justice Stevens' abandonment of history as the determinant of what rights the Constitution protects places insufficient constraints on judges. It "basically means picking the rights we want to protect and discarding those we do not."

After all, what is the difference between the Miranda rule celebrated in the halls of academe and the Lochner rule disparaged there? Is Miranda better grounded in the text and history of the Constitution? Of course not. The Politically Correct like the result in Miranda and not in Lochner, period.

In her opening statement Justice-to-be Kagan says, "We tell the new graduates that they are ready to enter a profession devoted to 'those wise restraints that make us free.'"  Does that include restraints on the judiciary?

For these reasons, the Supreme Court is a wondrous institution. But the time I spent in the other branches of government remind me that it must also be a modest one - properly deferential to the decisions of the American people and their elected representatives. What I most took away from those experiences was simple admiration for the democratic process. That process is often messy and frustrating, but the people of this country have great wisdom, and their representatives work hard to protect their interests. The Supreme Court, of course, has the responsibility of ensuring that our government never oversteps its proper bounds or violates the rights of individuals. But the Court must also recognize the limits on itself and respect the choices made by the American people.

I hope she really believes that. More importantly, we need to know the nature of the limits as she sees them. Surely it is not blind deference to anything the legislature enacts. What, then? Is it history and the original understanding of constitutional text?  If not, is there anything else that amounts to a real restraint? As the Scalia-Stevens debate today illustrates, any other claimed restraint is likely illusory.

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"What I most took away from those experiences was simple admiration for the democratic process. That process is often messy and frustrating, but the people of this country have great wisdom, and their representatives work hard to protect their interests. The Supreme Court, of course, has the responsibility of ensuring that our government never oversteps its proper bounds or violates the rights of individuals. But the Court must also recognize the limits on itself and respect the choices made by the American people."

Think that phrasing wasn't vetted at the White House? A White House trying to nurse along its one big legislative victory before it gets drowned in the Gulf Oil Disaster?

Let me translate in specifics: "Even though the President who tapped me pushed through the health care bill with messy and frustrating closed-door meetings in Congress, not to mention the Cornhusker Kickback and other such embarrassments, Harry and Scary have great wisdom -- or, failing that, great muscle -- and worked hard to jam this thing through on a one-party vote. Thus I recognize the limits, or at least the reasons for selectively pretending that I see limits,
on my ability as a Justice to hold the thing unconstitutional notwithstanding its unprecedented and constitutionally quite dicey mandate that voluntarily uninsured citizens buy a product they don't want -- or else."

Well, at least when the heathcare legislation comes before the Court, we won't be able to claim Justice Kagan didn't tell us, albeit in code, how she was voting.

I couldn't help being reminded of Sotomayor's confirmation testimony that Second Amendment rights are fundamental -- and then voting with the dissenters today in McDonald.

Kagan steps more smoothly than Sotomayor, but make no mistake about it, it's the same dance.

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