2. Judge Bork writes: "Every time a court creates a new constitutional right against government or expands, without warrant, an old one, the constitutional freedom of citizens to control their lives is diminished." What does he mean by this? What did Chesterton mean when he said: "What is the good of telling a community it has every liberty except the liberty to make laws? The liberty to make laws is what constitutes a free people."
3. Bork also says that when the Court discovers that a new constitutional species has somehow evolved, the Court's opinion should make clear (in the interest of full disclosure to the people) that the decision "does not come out of the written or historical Constitution. It is based upon a moral choice the judges made, and here is why it is a good choice, and here is why judges are entitled to make it for you." Should the Court be honest when creating new constitutional doctrine and applying that doctrine to strike down popular laws such as the Pledge of Allegiance?
4. Proponents of a "living, breathing, evolving Constitution" sometimes argue that the Constitution must evolve to keep pace with social progress, changes of social circumstances, and more enlightened modern understandings of liberty and justice. Do you agree with this argument? What might a proponent of originalism argue in response? How do we know that the Court's view of liberty and justice is more enlightened than that of the People? Does the Court speak for the People? If not, how do the People speak?
5. See Jeremy Waldron, The Core of the Case Against Judicial Review, 115 Yale L.J. 1346 (2006). Here is a summary of Waldron's thesis, written by Prof. Richard Garnett:
In his essay, [Waldron] suggested that "rights-based judicial review is inappropriate for reasonably democratic societies whose main problem is not that their legislative institutions are dysfunctional but that their members disagree about rights.'" This is because (to oversimplify) there is no reason to believe that courts...are more likely to better protect rights than are democratic legislatures....
And here is an excerpt from Waldron's article at 1353:
In this Essay, I shall argue that judicial review is vulnerable to attack on two fronts. It does not, as is often claimed, provide a way for a society to focus clearly on the real issues at stake when citizens disagree about rights; on the contrary, it distracts them with side-issues about precedent, texts, and interpretation. And it is politically illegitimate, so far as democratic values are concerned: By privileging majority voting among a small number of unelected and unaccountable judges, it disenfranchises ordinary citizens and brushes aside cherished principles of representation and political equality in the final resolution of issues about rights.
6. Here is another quote from Bork that captures, I think, the core of the controversy:
In law, the moment of temptation is the moment of choice, when a judge realizes that in the case before him his strongly held view of justice, his political and moral imperative, is not embodied in a statute or in any provision of the Constitution. He must then choose between his version of justice and abiding by the American form of government. Yet the desire to do justice, whose nature seems to him obvious, is compelling, while the concept of constitutional process is abstract, rather arid, and the abstinence it counsels unsatisfying. To give in to temptation, this one time, solves an urgent human problem, and a faint crack appears in the American foundation. A judge has begun to rule where a legislator should.
Do you think judges should give in to this temptation? Why or why not?
7. Justice Brennan says his duty was to enforce the "constitutional vision of human dignity" and that "the demands of human dignity will never cease to evolve." Where is that clause contained in the Constitution? What is human dignity? Does respect for human dignity require that capital punishment be upheld to protect the human dignity of the murdered victim? Or struck down to protect the human dignity of the convicted murderer? Does it require that abortion laws be struck down to protect the human dignity of pregnant women facing unwanted pregnancies? Or must the states ban abortion to protect the human dignity of developing babies in the womb? Does it require government to provide free housing, food and health care to the poor? Or to reduce the burden of taxation to vindicate the dignity of persons to decide how to spend the money they earn by their own hard work?If the Constitution does not define human dignity (or even mention it), how do Justices know what the constitutional right means and which laws are inconsistent with it?
8. Consider again what Justice Brennan says about whose interpretation of the Constitution he seeks to enforce:
"When Justices interpret the Constitution they speak for their community, not for themselves alone. The act of interpretation must be undertaken with full consciousness that it is, in a very real sense, the community's interpretation that is sought. Justices are not platonic guardians appointed to wield authority according to their personal moral predilections."
Which "community" supplies the interpretation Justice Brennan then adopts as law? He tells us more when discussing his view that capital punishment is "under all circumstances" unconstitutional:
"This is an interpretation to which a majority of my fellow Justices--not to mention, it would seem, a majority of my fellow countryman--does not subscribe...I mentioned earlier the judge's role in seeking out the community's interpretation of the Constitutional text. Yet, again in my judgment, when a Justice perceives an interpretation of the text to have departed so far from its essential meaning, that Justice is bound, by a larger constitutional duty to the community, to expose the departure and point toward a different path. On this issue, the death penalty, I hope to embody a community striving for human dignity for all, although perhaps not yet arrived."
9. When a Justice seeks to embody the values of a future, ideal community, whose values does he look to in defining what kind of future community is the ideal?
10. Here is the essence of the debate in my opinion. Most Americans love and accept the Constitution and have no problem being governed by it. But to be governed by the Constitution is one thing; to be governed by the policy preferences of an unelected body of lawyers is something else. The Court's legitimacy depends upon its ability to truthfully assure the People that its decisions are faithful interpretations of the written Constitution (as opposed to decrees imposing the policy choices of 5 members of the Court). Do you think the Court has succeeded in this regard?
Let's talk about these issues in class.
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