Ian Weinstein again, reporting in from Dublin. The Fordham Ireland Summer Program crossed the open border between the United Kingdom and the Republic of Ireland and came into Dublin several days ago. The contrast between Belfast, a former industrial centre (my spell check seems to know where I am) of about 250,000 people and Dublin, the heart of a metropolitan area of over a million, which has emerged as a significant European capital city since the explosion of the Irish economy over the past dozen years or so, is pretty striking. While outsiders have only just started to come to Belfast as the political problems recede, Dublin is bustling with tourists, foreign workers and the many Irish who are enjoying prosperity, even as the Celtic Tiger has caught a cold.
From my petty perspective, it means we had great meals in Belfast, as we could find and get into many of the best restaurants. In Dublin, I am once again at great risk of eating with the tourists, a group that cannot enforce standards because whether or not I liked the meal, there is another pigeon tomorrow. But I did not really mean to share thoughts about eating in Ireland – lots of people do that. To my observation, however, not many people are sharing thoughts about the Supreme Court’s recent Second Amendment case, the House of Lords and the reification of strong judicial review in American legal education. I wonder why that is.
Yesterday I finished the second of two classes on a pair of recently decided cases. You all know D.C. v Heller, the Supreme Court’s Second Amendment case. Over here, although the press has noticed that case, R. v Davis, is getting all the headlines. In that case, the House of Lords reversed a murder conviction arising out of a shooting at a New Year’s Eve party because the decisive evidence came from anonymous witnesses. The Guardian and other media outlets have given significant play to the possibility that about 50 serious criminal cases may be reversed because of the ruling and the Brown government, already suffering even lower approval ratings than our Chief Executive, is preparing emergency legislation to reverse the outcome.
There are many interesting things to say about all this. I am particularly struck that anonymous witnesses, which we could never use as they do here because of Crawford and the Confrontation Clause, came into vogue because of urban violence in the 1990s, and were not a regular feature of the notorious non-jury Diplock courts used in Northern Ireland during the Troubles. Of course they had other means to encourage convictions in those cases, but I think it noteworthy that ordinary domestic crime, not political or terrorism cases (depending on how you see it), drove this significant infringement on civil liberties.
Anyway, the pair of cases made a fascinating contrast in so many ways. Davis is almost all analysis of case law in the classic common law fashion. The Appeals Committee of the Lords (soon to turn into the Supreme Court of the United Kingdom) sits as the highest court in a legal system of common law whose ultimate contours are defined by Parliament, which is supreme and has the last word. Heller, on the other hand, is mostly history and text parsing, as our Supreme Court sits atop a system controlled, in the end, by its judgment about the meaning of our written and supreme constitution.
As I taught the pair of cases, I wanted my students to understand the legal doctrines, but I also wanted them to appreciate all the particular commitments that come with each system. In the United Kingdom, comprehensive change can come quickly as ultimate responsibility for the contours of any law rests with the current government - any ruling from the highest court can be altered by legislation. In this system, civil rights are a deep but malleable tradition. For example, defendants in the U. K. no longer enjoy a right to silence, as we understand it in the U. S. They adopted a new statute in recent years and instruct jurors on the negative inference from silence in a range of cases. The press accounts suggest that anonymous witnesses will also soon be countenanced and regulated by statute.
In our system, the response to Heller will take years to play out and certainly will not, and cannot come by Congress reversing the result. Our adherence to a written constitution, coupled with the diffusion of authority that is so distinctively American, means that responsibility for enforcing and responding to a case like Heller rests with thousands of officials at all levels of government. Many must share the burden of developing the law in this area and a comprehensive, coherent response is not only unlikely, it is virtually forbidden. We prefer a civil rights regime that enshrines categorical rules, makes substantive change very difficult and leaves much ambiguity and room for evasion on the ground. It has its virtues, but it also has its vices.
It is too easy for us to reify our own legal system and see others as imperfect, ill designed or still developing toward the American model. I think most of us in American legal education take that path, often without reflection. It is easy to dismiss ideas whose contours are unknown to us and participate in filling our students with the ideology of American exceptionalism and perfectionism. Seeing our constitutional arrangements from this perspective helps me remember afresh that they are choices, even if they are choices made by particularly wise and careful thinkers. They are the choices from which we must move forward and probably entitled to strong deference for that sort of reason - which I take to be Justice Scalia’s bottom line - but they were not inevitable.
I am much impressed by the concrete reality that civilized people do it otherwise and Heller and Davis are a particularly attractive pair of cases to illuminate these issues. After all, the politics run in such different directions. In one case a court upheld what we would term a liberal value and in the other a conservative value. One result is likely to be quickly reversed by legislation, the other is enshrined for what will likely be my lifetime. You may think one or the other good or bad, but you can’t help notice the difference.
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