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