I'm a conservative, and tend to favor the "originalist" approach to interpreting the U.S. Constitution. But I must admit to long-term ambivalence about some aspects of that judicial philosophy. As George Will has often pointed out, at the time the Constitution and Bill of Rights were ratified, such punishments as ear-cropping were not considered "cruel and unusual;" today that penalty is hard to imagine as anything else.
At the same time, the Supreme Court's decision in Roper v. Simmons, holding that application of the death penalty to juveniles is always unconstitutional, no matter what, is the worst kind of judicial legislation under the guise of a "living Constitution."
Stuart Taylor's piece in the National Journal today was persuasive to me:
The bottom line is that nonadherents understandably see originalism and living constitutionalism alike as smoke screens for imposing the justices' personal policy preferences.Indeed. Originalists like Scalia and Thomas always seem to find the original meaning of the Constitution to fit their policy preferences; and living constitutionalists always seem to find their own way to a policy they prefer. Note, for, example, in Roper Justice Kennedy based the majority opinion heavily on what he referred to as "evidence of national consensus against the death penalty for juveniles." Come on! That's not what courts do.
So which approach is best? Taylor suggests a more pragmatic, realistic approach to judging that relies heavily on what Chief Justice John Roberts referred to as "judicial modesty"
in the sense of great hesitation to second-guess decisions by other branches of government. Embraced in general terms by then-Judges John Roberts and Samuel Alito during their Supreme Court confirmation hearings, the judicial-modesty approach is expounded more fully in a November 2005 Harvard Law Review article by Posner, a prolific and ideologically eclectic legal scholar.Taylor expounds on Posner's article. I haven't read the law review article, but I recommend Taylor's summary and discussion of it.
As much as we would like them to be clear-cut and simple, life and the law are often messy and complex. A bit more modesty on both sides of the Constitutional divide would save us a lot of trouble. For example, Roe v. Wade never would have been decided to create a constitutional right to abortion, and the law in the United States on that subject would be much more heterogeneous, and much less controversial, than it is now, as James Q. Wilson argues in a weekend Wall Street Journal editorial (link unavailable) entitled "Abortion Nation:"
Those European laws are not perfect, and I am anything but a europhile. But the abortion climate Wilson describes in those countries does seem preferable to ours in the USA, which only exists because the Supreme Court issued a sweeping, legislative-style ruling on an issue better left to legislation.
[A]bortion is scarcely an issue in most European democracies, not because the people who live there have views radically different from American ones, but because legislatures, not courts, authorized abortions using language that tried to strike a reasonable balance among competing views.
When other countries authorized abortions, they did not authorize a right to one. Their laws were designed to give varying degrees of respect to unborn life. (Only in China is there a law as permissive as that conferred by Roe v. Wade.) When Prof. Mary Ann Glendon surveyed abortion laws here and abroad in the late 1980s, she found that in France, Germany, Italy, the Netherlands, Switzerland and the U.K. there existed pre-abortion waiting periods, mandatory counseling, time limits of when during a pregnancy an abortion could occur, and a requirement that several physicians agree on the need for an abortion.
Judicial modesty: An idea whose time has come?