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

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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.

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.

Courts may decide constitutional cases more objectively when they better understand the perspectives of relevant groups--overcoming subconscious biases Cardozo says inhere in one's limited personal perspectives. As capacity for empathy can increase with broader experience, diversity of backgrounds on multi-judge tribunals, such as our Supreme Court, may enhance their collective capacity to understand contemporary society. Thus, the racially-insulated, all-white majority in Plessy v. Ferguson that upheld racial separation on trains could not empathize with the late-nineteenth-century experience of African Americans. By contrast, ability to empathize with women generally likely influenced otherwise socially-conservative, states-rights-oriented Justice O'Connor to vote to retain the core of Roe, in Planned Parenthood v. Casey. And co-"swing voter" Kennedy may have learned from O'Connor's perspective or his interactions with other women.

Finally, the practice of empathy requires both a knowledge of others and an intellectual capacity to identify with them. So even some with very-diverse experience do not think empathetically if disposed against it. Conversely, empathy does not require being, or knowing well, a racial minority, woman, et cetera. It may derive from other categories of experience, such as socio-economic background or professional work, or no direct experience at all--instead emerging from open-mindedness and a habit of learning about others.  

     Principles that constrain personal bias.   

Though judicial discretion is necessary, conservatively-oriented, limited by careful selection and judicial independence, and improved by empathy; some subconscious bias still may color any judge's perspective when the applicable law is gray. To counter that influence, courts aspire to use neutral-tending principles, resistant to judges' individual ideologies.

For instance, rather than philosophizing about human dignity in the abstract, a process easily swayed by ideology, the Supreme Court often ties recognition of fundamental rights to already-recognized legal principles or social practice. In 1908, it began naming the specific, unenumerated rights--not expressed in the 1788 text or amendments--that the Fourteenth Amendment's general guarantee of "due process" should be interpreted to restrict states from violating. Looking to many of the rights protected from federal infringement in the Bill of Rights, the Court saw examples of rights it deemed "fundamental to ordered liberty," such as freedom of expression, that informed the undefined meaning of the "due process" restriction now imposed against states. 1788 ideas on rights needing protection from federal majorities, codified in the Bill of Rights, thus helped define abuses needing protection from states over a century later, a method applied in McDonald's recent holding on gun rights.

Identifying fundamental rights beyond Bill of Rights examples, the Court has bound itself to neutral-tending, limited principles of analogy and incrementalism. 1967's Griswold v. Connecticut used analogy both to constitutional text and to other rights already recognized in precedent, finding recognized privacy- and family-related interests extended to protect married couples' contraceptive use. Incrementalism--recognizing the Burkean value of continuity while evolving constitutional understanding--has characterized the Court's approach to federal power. The Court expanded the interpreted scope of commerce power in precedential steps that paralleled our national economy's increased integration.

Our system of constitutional government depends on judicial interpretation, though all agree that discretion must be constrained.   Every Supreme Court justice--even the most conservative--uses sources and methods beyond the text of the 1788 Constitution to decide some constitutional questions. Arguments for a constitutional right to same-sex marriage before the Court thus rely not only on text such as the Equal Protection and Due Process clauses, but also on existing, analogous precedent described below. Empathy may aid the Court the Court's objectivity in assessing the gay litigants' claims. And other rights recognized in precedent provide a foundation on which the Court could frame recognition of a right to same-sex marriage as an incremental rather than radical step.

V. Debatable Questions Remaining after Purging the Myths

Grasping originalism's limits and judicial discretion's necessity does not end debate but brings focus to challenging, real disputes. The whole-constitution approach, alone, does not decide but only better frames arguments about the existence and scope of such unenumerated rights as abortion and same-sex marriage. And legitimate arguments remain on questions of federal power, including the legislative power authorizing the Affordable Care Act (ACA).

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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


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Most constitutional scholars, constitutional law p... by Darren Latham on Thursday, Jun 13, 2013 at 9:23:44 AM
of the U.S. and you'll see that the Constitution i... by Daniel Geery on Thursday, Jun 13, 2013 at 1:06:06 PM
Any legal system which fails to accord rights to t... by Vietnam Vet on Thursday, Jun 13, 2013 at 5:52:07 PM
I agree with much of this post. On the second poin... by Darren Latham on Sunday, Jun 16, 2013 at 11:54:42 PM
It is the spirit, not the text that counts. And ev... by BFalcon on Thursday, Jun 13, 2013 at 6:02:44 PM
I couldn't agree more. This is a well written, tho... by Opacus Black on Thursday, Jun 13, 2013 at 7:39:29 PM