Thanks to Michael for linking to Cathy Kaveny's column in the current issue of Commonweal ("Letter v. Spirit: Why the Constitution Needs Interpreting").
Kaveny is right, of course, that "[g]ood judges do far more than apply the law; they also interpret it" and that "[t]he real question is how" -- not whether -- "a justice will approach the task of constitutional interpretation." Still, her criticism seems to me directed at a straw man: No one -- not George Bush, not John Roberts -- denies that good judges "interpret" law. What's more, President Bush's "mantra" that he wants judges who will not "legislate from the bench" is quite consistent with Kaveny's observation. To want a judge who will not "legislate" is not to demand a judge who refuses to "interpret"; it is to want a judge who will interpret the Constitution well -- that is, in a way that is democratically legitimate and that is consistent with the text, history, and structure of that document.
Kaveny continues:
We have to ask how we should make sense of the “basic law” of our country today, which faces responsibilities and challenges the Founding Fathers could never have imagined. An approach rigidly focused on the explicit provisions of the text and the intention of the framers is both theoretically and practically inadequate.
As I see it, the primary challenge we face -- one that the Founders could and did imagine -- remains the challenge of common-good-achieving (or, at least, common-good-approaching) self-government under and through a Constitution. That many of the difficult moral and policy questions presented today were not (and probably could not have been) contemplated even by the most engaged minds of the 18th century can be conceded by those who believe that the Constitution was (and is) more about structuring government and allocating decision-making authority than it is about providing -- or authorizing federal judges to provide -- answers on the merits to difficult new moral questions. (This is not to say, of course, that "judging" never involves answering difficult moral questions.)
Yes, "[a]n approach rigidly focused on the explicit provisions of the text and the intention of the framers is both theoretically and practically inadequate", but "rigid[ity]" usually is. As I see it, though, the question is whether a different approach -- one that would authorize and encourage judicial invalidation of democratically crafted policy choices on the basis of judges' "sense" of our basic law -- but that is unmoored from the "explicit provisions of the text" -- the meaning of which is reasonably tethered to the text's original public meaning (not the "intention of the framers") -- is legitimate or desirable.
Kaveny continues:
Does adopting this general approach mean you can’t criticize Roe? Absolutely not. But it means that you criticize Roe not because it cast its interpretive net too widely, but because it did not cast its net widely enough. . . . [I]n holding that the unborn are not legal “persons,” the Court failed to consider the dangers to democracy of separating “personhood” from humanity-a lesson that the holocausts of the twentieth century drove home to us again and again.
The Court did indeed fail morally in this regard. Still, it remains appropriate and important to criticize the Court not only for this failure, but also for what I think remains the Roe Court's striking legal error: It was simply not the case that the Constitution itself, properly understood, (effectively) entirely disabled state legislatures from regulating abortions or that it authorized federal judges to invalidate all state laws that did regulate abortion. The Court's "sense" of our basic law -- and its translation of that "sense," in a striking act of "raw judicial power," into a warrant to remove the moral questions about abortion from the political arena -- was misguided. True, the Court overlooked "the dangers to democracy of separating 'personhood' from humanity"; it also just got the law wrong -- it misunderstood and misinterpreted the relevant text -- and acted on that error in a way that is also "danger[ous] to democracy."
