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Is Constitutional Conservatism Neither? How Mistaking Our Nation to Be Constituted by One Document Offends Rule of Law

By       Message Darren Latham     Permalink
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Limiting constitutional development to only the amendment process also would offend the conservative preference for incremental change. That conservative ideology traces to thinkers like Burke--especially his 1790 critique of the French revolution. Modern Burkean conservatives argue radical change risks unforeseen consequences and sacrifices benefits embedded in tradition. Change to law, they say, should follow experience, not abstract ideas, and be proportionate to change in social conditions. Hence, change in constitutional understanding is more suited to case-by-case judicial development than to creating constitutional text to be ensconced by amendment, difficult to later alter or undo.

Compounding the potential harm from an amendment's sharp break with tradition, society's complexity hinders predicting effects of change. In The Road to Serfdom (1944), Austrian economist Friedrich Hayek posited central planners' fundamental problem: inevitable gaps in knowledge of present situations denies certainty about outcomes of reforms. The many American conservatives who purport to follow Hayek thus should find incremental constitutional interpretation superior to formal textual change, amendment placing unwarranted trust in our ability to know the future direction of society and to plan centrally.

Consistent with those principles, conservative justices did not require any amendments to establish, for instance, that campaign contributions are constitutionally protected expression, though constitutional text protects only "speech," or that the government's mere regulation of property use triggers a right to compensation, though the Takings Clause of the Fifth Amendment applies only to property "taken." Instead, those concepts developed through a century's incremental judicial decisions, now constitutionally enshrined in precedent, precedent yet subject to further refinement based on new circumstances or evidence of practical unworkability.

  Judicial Virtue: Prudent Appointments and Moderated Adjudication

While judicial interpretation proves necessary and desirable, and some resulting precedent eventually enters our constitution, even liberals acknowledge judges' discretion needs guides and limits. And our system does promote such virtuous adjudication in many ways. Most judges--liberal to conservative--labor to respect bounds and follow principles. All federal judges and many state high-court judges have the independence arising from not having to stand for election--crucial for the judicial role in protecting minority rights against political influence of potentially-tyrannical majorities. Moreover, the best have a professional record that correctly predicted judicial ethics and restraint at the time of their appointment, as well as strong legal knowledge, experience, and analytical ability. Those attributes equip them to develop constitutional interpretations thoughtfully, incrementally, and only when necessary. That the final say falls to multi-judge appellate courts dampens individual influence. Moreover, they apply various limiting principles that further constrain their discretion. And empathy plays a positive role, sometimes enhancing objectivity.

      Empathy's moderating virtue. 

Judicial discretion critics especially dislike that judges must determine whether rights not codified in constitutional text are inalienable and thus protected, decisions they think rife with personal bias. Typical are recent arguments against "empathy," especially during the confirmation process for Justice Sotomayor.


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Intellectual identification with or vicarious experiencing of the feelings, thoughts, or attitudes of another person.


Harmony of or agreement with in feeling, as between persons or on the part of one person with respect to another.

The critics of empathy have it backwards: rather than being a disease, empathy can cure ailments of ignorance. By contrast, the claim that some judges rule merely to favor certain groups really charges a misuse of sympathy, which no one condones and Obama did not endorse when citing the virtue of empathy in judicial nominees.

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In certain hard cases, empathy decreases bias by mitigating subconscious prejudice, prejudice often owing to the limits of a judge's experience. Judges able to empathize with--intellectually identify with--the perspectives of social groups with interests at stake in a case can better avoid antipathy to those interests. But when a judge cannot transcend his or her narrower perspective, antipathy to other perspectives thus may inhere, even if only subconsciously.

Justice Benjamin Cardozo described how such inherent biases can taint adjudication in his still-influential 1921 publication, The Nature of the Judicial Process. When logic alone cannot decide a case, "[h]istory or custom or social utility or some compelling sentiment of justice or sometimes perhaps a semi-intuitive apprehension of the pervading spirit of our law must come to the rescue . . . ." But impeding that knowledge, Cardozo notes,

Deep below consciousness are other forces, the likes and dislikes, the predilections and prejudices, the complex of instincts and emotions and habits and convictions, which make the man, whether he be litigant or judge.

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Darren Latham, associate professor at Florida Coastal School of Law in Jacksonville, teaches constitutional law, comparative law, and international commercial law courses and writes on constitutional history and theory.

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Is Constitutional Conservatism Neither? How Mistaking Our Nation to Be Constituted by One Document Offends Rule of Law