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03/07/2021

Gerard Bradley on Constitutional Value Judgments
Michael Ramsey

At Law & Liberty, Gerard Bradley (Notre Dame): The Constitution’s “Value Judgments”.  From the introduction:

The “Noble Lawyer” in Hadley Arkes’ recent essay worries about “giving free rein to life tenured Justices to apply their own understanding of natural law.” Hadley’s correspondent captures here the concern at the heart of contemporary conservative constitutionalism. But the expression falters. “Free rein” is too strong: who, after all, enjoys such sovereign freedom in any job? It is rather a question about judges resorting to “natural law” when it is necessary in order to interpret and apply the constitutional text, especially the guarantees of human rights sprinkled throughout it.

“Natural law” is one way to name the object of that recourse. But that term still spooks many constitutional lawyers, who cannot forget the derision heaped upon it by legal luminaries such as Oliver Wendell Holmes (and also by Supreme Court Justice Hugo Black). Why not call it instead, “a sound understanding of genuine human flourishing, and of justice predicated upon that account.” That or something like it is less forbidding than “natural law.” And it comes without the baggage.

And from further on:

Justice Scalia more carefully phrased the central conservative worry in his powerful Casey dissent: whether the Court’s “pronouncement of constitutional law rests primarily on value judgments.” The meaning of “value judgment” in this great Justice’s constitutional conservatism stands in contrast to specifically “legal” reasoning. From Casey: “As long as this Court thought (and the people thought) that we Justices were doing essentially lawyers’ work up here—reading text and discerning our society’s traditional understanding of that text—the public pretty much left us alone. Texts and traditions are facts to study, not convictions to demonstrate about.”

The truth that a human person comes into being at conception is not usefully described as a “value judgment.” It is a philosophical conclusion which follows certainly upon established scientific facts, much like the conclusion that a human person ceases to be—is dead—when all brain function is gone. The Court’s conservatives have nonetheless all shared Scalia’s contrary position. He wrote in Casey that Roe “is bound to be wrong, unless it is correct that the human fetus is in some critical sense merely potentially human. There is of course no way to determine that as a legal matter; it is in fact a value judgment.”

,,,

Conservatives’ aversion to judicial “value judgments” is not limited to abortion. Against assertions that the Framers intended the Eighth Amendment to exclude capital punishment, Justice Scalia (in his 1988 article, “Originalism: The Lesser Evil) that “one must not only say this but demonstrate it to be so on the basis of some textual or historical evidence.” Just so. But then the Justice made a reductio argument that signaled his opposition to judicial “value judgments,” tout court. Scalia wrote that, if one is “willing simply to posit such an intent for the ‘cruel and unusual punishment’ clause, why not for the due process clause, the equal protection clause, the privileges and immunity clause, etc.?”  

But:

Are we to abridge the Constitution, shear off its meaning, edit it down, whenever applying it faithfully calls for a “value judgment”?

Justice Scalia might have figured that multiplying examples would cause readers to blanch. Maybe some will, and with good reason, depending upon what one thinks of the “values” of those who presently occupy the federal bench. But no one’s visceral reaction affects what the text of the Constitution says, or settles what those who made it our fundamental law over 200 years ago understood it to mean.  

And in conclusion:

Conservatives’ animus towards “value judgments” is not an answer to parallel questions about constitutional exegesis (if you will). They do not defend it as a sound tool for ascertaining old meaning nearly as much as they depend upon it to justify judicial review. It is “legitimacy”—both “theoretical” (that is, substantive) and practical (as a matter of popular acceptance of an often unpopular invalidation of democratically enacted law)—that concerns them. The looming potential for making law according to one’s own biases (or for merely being accused of doing so) is met by the Justices’ insistence that they are, instead, like umpires “calling balls and strikes.”

Were the Constitution being written today, the facts and fears marshaled by constitutional conservatives would rightly feature in any discussion of how much authority to assign to the judiciary. Worries about the progressivism of legal elites, or of wider contemporary moral pluralism (the sitz im leben of a Court mired in the middle of a culture war), and perceptions of popular attitudes toward courts would all rightly figure into writing a new Article III. Certainly, a dramatically reduced role for the Supreme Court in our constitutional system would be on the agenda.

But the Constitution that some think we should have is not the one that we do have.

I think this essay has a bit in common with the one noted here (and critiqued here).