I want to second Rick Garnett’s thoughts about the proper limits of constitutional judging and to further defend the value of opposition to “legislating from the bench” as a useful, albeit incomplete, conceptual framework toward defining the parameters of legitimate judicial authority. I suggest below that this contrast in functions is the very distinction directed by the Constitution itself and further the courts are not vested with and are ill-equipped to perform a mission of moral revision.
I suggest that one good reason to sound out the differences between the judicial role and that of officials in the other branches of government in terms of a contrast between “judging” and “legislating” is that this difference is rooted in the actual text of the Constitution. Article III, Section 1 vests the “judicial Power of the United States” in the Supreme Court and other inferior federal courts, while Article I, Section 1 states that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States.” By explicit and mandatory language, then, the Constitution differentiates the separate powers – and the separate roles – of the judicial and legislative branches. To be sure, saying that one branch has a “judicial” role and the other a “legislative” power cannot be the end of the analysis, as these terms still must be defined and their differences elucidated. But I contend that it is quite an appropriate starting point for analysis. And, moreover, the plain text of the pertinent grants of powers confirms that the judicial and legislative branches are designed to perform different functions and exercise powers of a separate nature.
While by no means capturing the entirety of the distinction between judging and legislating, a subject on which we could spill many barrels of ink, I submit that judges should recognize that they are pressing the envelope of the “judicial Power” when they find that overturning a democratically-reached governmental action would require resolution of a moral question that is open-ended (that is, not dispositively answered by the text and historically-grounded meaning of a specific constitutional provision) and seriously contested (that is, reasonable people in public debate reach different conclusions).
Some years ago, I offered some thoughts on this aspect of the question in a short essay in First Things (still available on-line at this link) that I provocatively titled “The Moral Incompetence of the Judiciary.” I used the term “incompetence” in both senses of that word: that the judiciary lacks legitimate authority to decide moral questions (as contrasted with interpreting legal texts) and that the members of the judiciary are ill-equipped to resolve moral problems. In that essay, I argued that we do not ask our courts to engage in capacious moral or philosophical inquiry, nor should we. As Judge Learned Hand once observed, we have not anointed the Justices of the Supreme Court to rule us as a “bevy of Platonic Guardians.” For that reason, we do not envision a role for the Supreme Court that is heavy with philosophical, moral, and political responsibility (or more accurately, power). Ronald Allen perhaps said it best: “With all due respect to the hard-working and honorable members of the Court, past and present, for whom in fact I have enormous respect, they are not collectively a group that commands our fealty because of the profundity of their moral insight.” (Ronald J. Allen, Constitutional Adjudication, The Demands of Knowledge, and Epistemological Modesty, 88 NW. U. L. REV. 436, 440 (1993).)
In sum, I remain unconvinced that judges possess sufficient knowledge and virtue to undertake a mission of moral evaluation through the episodic venues of cases and controversies. Nor do I believe that the democratic process, of political institutions accountable to the people, is so hopelessly imperfect that the preceptorship of the courts is preferable.
What then is the role of the judiciary? Without intending here to initiate an ongoing debate about textualism versus conceptualism or original meaning versus the living Constitution, I suggest that the role of a constitutional court is preservationist in the best sense, that is, preserving the fundamental values already set forth in the founding charter against new dangers arising in each era. In a rhetorical flourish that (shameless self-promotion coming) of which I’m still kinda proud (I did warn that shameless self-promotion was coming), I concluded a related piece on constitutional review and moral discourse with these words:
“The Constitution is an anchor for our ship of state, not the sail for our voyage to tomorrow. The framers did ordain certain enduring principles, which guard us on our journey and keep the passing waves of tyranny from crashing over us. When the winds of change blast us forward at dangerous speed or when we tack too hard to port or starboard, we depend upon judges of fortitude and legal wisdom to cast the anchor overboard and keep us moored in our traditions of liberty and democratic government. We have not, however, appointed an oligarchy of judges as our governors in law or our counselors in morality. The commission to seek a better and more virtuous society belongs to each of us as individuals and as a collection of diverse local communities and institutions of voluntary attachment. We, the living, must work out our own passage to the new millennium.” (Gregory C. Sisk, Questioning Dialogue by Judicial Decree: A Different Theory of Constitutional Review and Moral Discourse, 46 Rutgers Law Review 1691, 1749-50 (1994).)
Rick, as usual, is too modest about what I assume is an ancestor (collateral, not direct!), the Rev. Henry Garnett, S.J., the superior of the Jesuit mission to England during the Guy Fawkes affair, who seems to have known about the plot, did not support it, but remained silent because his knowledge was sealed by the confessional. In his NYRB essay, Eamon Duffy says: "Inevitably, [Garnett] was executed for treason, though the spectators seem to have recognized a man of integrity and distinction, and he was, unusually, allowed to hang till he was dead before the prescribed disemboweling began."
As a quick follow-up to Amy's recent post, here is the Pope's encyclical. Here It is also available by going to the Vatican website, www.vatican.va . Although it was released today, it is dated Christmas day-- probably no coincidence. RJA sj
"Deus Caritas Est," the new encyclical, is out. I think this link to Zenit should bring you to the english tranlation posted on their webpage - but just in case that doesn't work, try zenit.org, and here's the info: Code: ZE06012520, Date: 2006-01-25, Encyclical Letter "Deus Caritas Est")
Here is the full text of a speech that Fr. John Jenkins (Notre Dame's president) gave yesterday to a large group of faculty, in the context of a discussion about academic freedom, the Catholic character of Notre Dame, and controversial events like "The Vagina Monologues."
A question: Is there a "Catholic" take on what "academic freedom," properly understood, *is*? Any ideas?
The "Get Religion" blog has some interesting reflections on the media coverage of this year's March for Life:
This year’s MSM coverage of the march was quite bland. In some ways, this is good. No one singled out tiny groups of hot-tempered radicals on the right and portrayed them as the norm. At the same time, I can’t find anyone who sought out some of the quirkier (and, yes, much smaller) groups that often support marches of this kind. Like who? Would you believe Libertarians for Life? And then there is the Pro-Life Alliance of Gays and Lesbians, a group that is concerned that a DNA hook for homosexual tendencies might have terrifying results. One can also find pro-life groups in the world of oldline, usually liberal, Protestantism — such as the National Organization of Episcopalians for Life.
The goal, of course, is to cover the mainstream and, in the pro-life movement, that means covering young people and women from evangelical, Roman Catholic and Eastern Orthodox sanctuaries, with a vocal presence of Orthodox Jews, as well. Perhaps the most important group at the moment is called “Silent No More,” in large part because the women with the somber, black “I Regret My Abortion” signs (photo from an earlier event, new photos here) are the archetypal opposites of the people who used to dominate television-news reports about these events. You know, that would be the angry men with red faces, bullhorns and bloody posters.
The women at these marches represent the mainstream. However, I was surprised — and disappointed, I admit — that this year’s mini-wave of coverage did not include more commentary from the left (the pro-life left and the pro-abortion-rights left). Yes, I wanted to hear more from the protesters and from the small, symbolic, groups in the march. I guess that, once again, my bias in favor of balance is showing.
Among the many, many interesting items over at Professor Friedman's invaluable "Religion Clause Blog" is an announcement of some welcome news:
According to Friday's Jewish Advocate, many Jewish groups are now joining the opposition to a bill pending in the Massachusetts legislature that would require religious institutions to make the same financial disclosures as nonprofit organizations. (See prior posting.) State Rep. Ruth Balser said the bill was a response to issues that arose in the Boston Catholic archdiocese after the child sexual abuse scandals. But, Balser noted, because of the centralized nature of the archdiocese, only four dioceses in the state would have to file disclosure statements, while each individual synagogue, Protestant church and mosque would have to file separately. A statement issued by Boston's Jewish Community Relations Council argues that the bill "unfairly and disproportionately" affects religious institutions such as synagogues, which have lay-led structures. Also opposing the legislation are the Massachusetts Council of Churches and the Islamic Council of New England.
[I]t is not the government's business to take sides in internal church disputes. You can imagine a legal system where it does. British courts supervise the way churches use their members' money. But the Church of England is controlled by the government. Our First Amendment forbids any such arrangement. When we talk about separation of church and state, this is what we mean -- that it is none of the state's business to say how churches are run. . .
. . . The Constitution favors an arrangement that leaves churches financially independent: The government does not support them; it should not inhibit their efforts to support themselves, and it should not get involved in reviewing how they spend their money. That is a matter for churches and their members to resolve among themselves.
In a recent issue of the New York Review of Books, the eminent scholar Eamon Duffy has a review of two books that are definitely on my list: God's Secret Agents: Queen Elizabeth's Forbidden Priests and the Hatching of the Gunpowder Plot, by Alice Hogge; and Remember, Remember: A Cultural History of Guy Fawkes Day, by James Sharpe.
Maybe my connection with this famous Jesuit explains my interest . . . Actually, there *is* a "legal" point to all this. Fr. Henry Garnet, S.J., was (in)famous for his "Treatise of Equivocation" (which was found, apparently, in the possession of one of the Gunpowder plotters). (In Macbeth, the Porter in one scene pretends to welcome to Hell an "equivocator, that could swear in both the scales against either scale.")
Today at Notre Dame Law School I heard a very interesting talk by Judge William Pryor, of the United States Court of Appeals, on the 1921 murder in Birmingham, Alabama of Father James Coyle by Edwin Stephenson, a methodist minister. I do not have a link, but here is an account of an earlier version of the talk, along with some discussion about the case.
One of the defense lawyers for Mr. Stephenson was Hugo Black, who went on, of course, to serve in the United States Senate and on the Supreme Court of the United States. Like (it appears) most of the players in the trial, Hugo Black was a member of the Ku Klux Klan, and anti-Catholicism and racism figured prominently in his defense.
Judge Pryor's primary theme was that lawyers -- even defense lawyers -- are not excused by their role, or by canons calling for "zealous advocacy," from their obligation to avoid evil.
John Hagen, Jr., has a nice piece in the Jan. 2 issue of America, providing an overview of the leading themes in the work of Professor Mary Ann Glendon. Unfortunately, it is not available -- except to subscribers -- on-line. It's definitely worth reading, though.
UPDATE: A helpful reader had provided a link to the piece. Here is the conclusion:
A leading theme in Glendon's writing is the importance of intermediate institutions in society-neighborhoods, churches, voluntary associations and the family. Echoing the 19th-century French thinker, Alexis de Tocqueville, she constantly stresses the role of these groups as "schools of citizenship" and "seedbeds of civic virtue." They teach cooperation, empathy, sacrifice, responsible use of freedom and concern for the common good. She frequently speaks of such groups in environmental terms, and warns that "the fragile ecology" that they embody is weakening. Mass culture, bureaucracy and global corporations all tend to stifle them. This speeds the atrophy of democratic skills and habits already set in progress by activist courts.
Glendon's emphasis on local "communities of memory and mutual aid" is classically Catholic. It reflects the key principles of solidarity and subsidiarity and stands in contrast to the rights-focused individualism of both the cultural left and the cultural right.
A striking summation of Glendon's outlook is to be found in the quotation she selected as the heading for her Web site . . . . It is taken from the Jesuit theologian Bernard Lonergan: "There is bound to be formed a solid right that is determined to live in a world that no longer exists. There is bound to be formed a scattered left, captivated by now this, now that new development, exploring now this and now that new possibility. But what will endure is a perhaps not numerous center, big enough to be at home in both the old and the new, painstaking enough to work out one by one the transitions to be made, strong enough to refuse half measures and insist on complete solutions even though it has to wait."
