Originally published in Big Government, April 18, 2010.
Geoffrey R. Stone, professor of law at the University of Chicago and editor of The Supreme Court Review, has a pertinent suggestion: The retirement of Justice Stevens and the impending nomination of his successor should spark “a frank discussion” of “the proper role of judges in our constitutional system” [“Our Fill-in-the-Blank Constitution,” the New York Times, April 14]. True to his promise of frankness, he charges “conservative” judges with advancing “disingenuous descriptions of what judges—liberal or conservative—actually do.” Such men as Justices Roberts and Scalia claim to seek the original meaning of the Framers, to serve as umpires who call the plays as they see them, according to the rules. But, Professor Stone charges, they do no such thing.
Such Constitutional phrases as freedom of speech, due process of law, free exercise of religion, cruel and unusual punishment do not define themselves, he remarks; “they did not have clear meanings even to the people who drafted them.” The Framers left such definition “to future generations.”
This conservatives on the Court all too eagerly have done. “Fueled by their own political and ideological convictions, they make value judgments, often in an aggressively manner that goes well beyond anything the Framers themselves envisioned.” The list of horrors proves long: examples include First Amendment protection for advertisers; prohibition of the regulation of guns; the right of the Boy Scouts to exclude ‘gay’ scoutmasters, although presumably not cheerful ones. Meanwhile, liberal judges have upheld Madisonian principle by striking down laws prohibiting interracial marriage whilst forbidding forced sterilization, protecting the rights of political dissenters and of minority religious denominations, and similarly handsome things. Bad conservatives. Good liberals.
Conservatives, he continues, don’t protect people. They protect “corporations, business interests, the wealthy and other powerful interests in society.” Driven by “their own political and ideological convictions,” conservatives “employ judicial review to protect the powerful rather than the powerless,” pretending to construe the Constitution as written but in fact injuring those “who are unlikely to have their interests fully and fairly considered by the majority” of their fellow citizens.
What conservatives lack and what liberals have, Professor Stone maintains (echoing Presidents Bill “I feel your pain” Clinton and Barack Obama) is empathy. Empathy, fellow-feeling, “helps the judges understand the aspirations”—don’t forget, intentions and meaning are inscrutable—”of the Framers.” Not only that, empathy “helps judges understand the effects of the law on the real world,” on “the lives of real people”—as distinguished, evidently, from such surreal people as corporate executives, gun owners, and Boy Scouts. If no one today can parse the Framers’ intentions and meaning, divining their aspirations might seem even more difficult, but Stone knows how, and someday might be so kind as to let the rest of us in on that.
Leaving aside Professor Stone’s odd equation of the rich and the powerful with the majority of people in this or any other society—are not property rights, for example, designed in part to protect the few who are rich from the many of us who are not?—two problems arise with this “frank” discussion of judicial deportment.
First, to say that such formulations as free speech, equal protection, and due process had no clear meanings to the Framers, that they are “blanks” to be “filled in” by “future generations” of judges, ignores the several centuries of legal precedent and philosophic reflection that preceded the year 1787. The Framers didn’t pull the Constitution out of thin air, that summer. They had read their Blackstone. The English common law, the treatises of Grotius, Locke, Montesquieu, Vattel and a dozen more philosophers and jurists: no blank slate, surely? True, such foundational terms “are not self-defining.” That’s why the Framers took care to read the books that defined them.
Did the Framers, and those who’ve tried to follow their intentions, understand that Americans will always need living judges to interpret the Constitution and apply it to cases? Good news, here: They were not idiots. They did indeed understand that. but this did not commit them to “empathy,” a word that does not loom large in their writings. When Publius considers judicial overreaching in Federalist # 78, he says that judges “declare the sense of the law”—rather strongly implying that framers of laws put some sense in there, and do not simply draw boxes marked ‘to be filled in later.’ Publius worries not about empathy or the lack thereof, but rather that judges might “be disposed to exercise WILL instead of JUDGMENT,” to substitute “their pleasure to that of the legislative body.” The will, benevolent or malign, empathetic, or cold, does not counsel anyone. The will may command; it may exhort; it does not reason, and it tends to disrespect limits. Judges therefore should not so much empathize or disdain. Judges should judge. That is to say, they should reason, using the law as their guide.
The claim that empathy deserves a central place in judging itself has a history, one traced in Paul Eidelberg’s seminal book, A Discourse on Statesmanship: The Design and Transformation of the American Polity, published in 1974. Eidelberg notices that the Progressives, notably Woodrow Wilson, required of judges and political men generally not so much prudence, reasoning, and judgment but compassion. Wilson did not suppose judges did not really know what the Constitution meant. He rather supposed that to be the problem. Reasoning founded on Constitutional law tends not toward the expansion of the modern state, including large provisions for public charity, which Progressives so fervently commended. Such reasoning tends to find limits to legislative and executive action, and therefore to government. More profoundly, reasoning founded upon Constitutional law tends not to register the Progressives’ historicist conviction that humanity has outgrown the thought of previous generations and that such reasoning must prove inadequate both morally and politically for today. Compassion, being a passion, tends toward the unlimited, toward boundlessness, and endless horizon. Hence such notions, among Progressives, and “the elastic Constitution” (Wilson) and “the living Constitution (Justices Roscoe Pound, William Brennan).
And so it has gone, for much of subsequent judicial decision-making by the new liberals, the Progressives. Compassion ‘helps’ those judges fill in the (alleged) blanks of Constitutional language with, to use Professor Stone’s phrase, “their own political and ideological convictions.” But shouldn’t a constitution, well, constitute something—say, a set of ruling institutions providing a tolerably knowable and stable framework for conducting public business? Precisely what empathy, elasticity, and growth cannot provide?
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