Monday, March 20, 2006

Judicial Modesty

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:"

[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.

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.

Judicial modesty: An idea whose time has come?


Anonymous DL said...


" to strike a reasonable balance among competing views."

Balance in the persuit of good and evil is not a solution but a guaranteed failure -half way between the north rim and south rim of the Grand Canyon is no place to stroll. Call black,black -white, white and evil, evil. How does compromise help the slaughtered innocents? It merely assuages our guilt a bit as we excuse the horror of what we do.

"...that several physicians agree on the need for an abortion.."

"several physicians" are who determines who gets euthanised today in Holland": more assuaging our guilt. The medical community has killed over 40 million innocents since Roe -they are hardly any more or less moral than an other community.

C Everett Koop and many top docs fail to see the word "need" as a medical part of an abortion decision-health and need are just loophole words -"Choice at least is more honest and doesn't further descerate the health community -remember always, how they were compromised in Nazi Germany even before WWII-

Afraid you struck out on this one.


Posted by DL

Monday, March 20, 2006 8:11:00 AM  
Blogger The Hedgehog said...

DL, I am not advocating the European abortion laws. I abhor abortion. I'm just saying that citizens of those countries at least have the ability to influence the law. Because of Roe v. Wade , Americans have no such ability. State legislatures can't even touch the issue withour ending up in federal court. That's the problem with judicial legislation-- it's anti-democratic. 

Posted by The Hedgehog

Tuesday, March 21, 2006 5:43:00 PM  
Anonymous DL said...

Okay -you make a good point -If Democracy has been working there would have been no Roe V Wade.

I fear that Democracy fails at times -I trust not my state of CT to worry the least about innocent life.

When it comes to democracy- it's less than perfect -remember Hamas.

Then what else is there that's better? 

Posted by DL

Wednesday, March 22, 2006 12:24:00 AM  

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