Bill Brennan Says

Here are some passages from Justice Brennan's contribution to the "great debate:"

1. "Our amended Constitution is the lodestar for our aspirations. Like every text worth reading, it is not crystalline. The phrasing is broad and the limitations of its provisions are not clearly marked. Its majestic generalities and ennobling pronouncements are both luminous and obscure. This ambiguity of course calls forth interpretation, the interaction of reader and text. The encounter with the constitutional text has been, in many senses, my life's work."

2. "We Justices are certainly aware that we are not final because we are infallible; we know that we are infallible only because we are final."

3. "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 predelictions."

4. 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."

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?

5. Justice Brennan reads the Constitution's majestic generalities and ennobling pronouncements as "a sublime oration on the dignity of man," and as therefore somehow creating a right to human dignity.

Is it possible for the Court to apply a "right to human dignity." For example, in the context of capital punishment does "a constitutional vision of human dignity" require capital punishment in order to reflect the human dignity of the victim of the heinous crime, or prohibit capital punishment in order to reflect the human dignity of the convicted killer? Does the vision of human dignity require government to prohibit abortion to reflect the human dignity of human life in the womb, or does it protect the right of women to choose to terminate a pregnancy as a reflection of the human dignity and autonomy of women (and what of the human dignity of the father of the child in the womb, whose views about this matter of life or death are contrary to those of the mother)?