Strengthening Constitutional Self-Government

No Left Turns

Multiple Empathies

That, according to David Brooks, is what good judges have. It’s no big news that calling judging dispassionate is too simple a view of the matter. But surely judicial review depends on a view of the Constitution that not merely a bundle of emotional perspectives. And in any case, reason must have a big role in determining what justice is in any particular case, in determining, for example, whether to what extent it’s really true that people act freely and responsibly and can be held accountable.

Discussions - 5 Comments

I know he is a dead white man, but David Hume had some interesting things to say about how sympathy/empathy worked to determine judgement. I know this is more John M. than Dr. Lawler but folks who are quick to hammer Locke and embrace Hume could profitably acquaint themselves with this "ancient" dispute.

The classic comment on this subject in the Jewish tradition is near that start of Pirke Avot (a book in the Talmud): "Do not make yourself like those that present before judges."

"Love work; hate domination; and seek not undue intimacy with the government."

A Talmudic comment, that could be a Lockeian sentiment.

"People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the publick, or in some contrivance to raise prices.
It is impossible indeed to prevent such meetings, by any law which either could be executed, or would be consistent with liberty and justice. But though the law cannot hinder people of the same trade from sometimes assembling together, it ought to do nothing to facilitate such assemblies; much less to render them necessary."

But what are political blogs if not organizations for hatching conspiracies against the people and seeking undue intimacy with the government?

In terms of Supreme Court precedent this was actually cited in Bell Atlantic Corp vs. Twombly with the exiting Souter delivering the Opinion.

Adam Smith being interpreted as compatible with Hume, as Souter is comparable with Sotomayor.

Empathy/Sympathy thus acts as a bridge in both political and economic collusion. Of course the full implications of the idea I think is best offered by Justice Stephens in the dissent.

It seems that (and you can see this lack of perception in the comments Brooks' article received) many people don't realize the empathy that flies around the halls in Congress, where the laws should be made.

On the topic, I found a really great article from The New Yorker profiling Chief Justice Roberts. Ultimately, the author seems to slam his 'doctrinaire agenda,' but I, on the other hand, walked away feeling pretty good about Roberts.

Here's my case in point: let the legislature be the ones who sympathize with their constituents; let the judges do what they do: call the strikes and balls. From the New Yorker article: "Nobody came to the ball game to see the umpire."

Oh, BTW, here's the link to that article on Roberts:

Annals of Law: No More Mr. Nice Guy

Isn't the basic idea that reason is more conducive than emotions to communication -- to reconciling your particular view of reality to my particular view to his particular view and hers, etc., and so in the process discovering common truth? And, politically speaking, isn't reason especially important in the institution of courts, where persons actually get the law enforced on them, and with finality (e.g., getting sent to prison; being forced to pay money to another citizen)?

Not that government (or any institution of it) should simply be an instrument of emotional expression (I'll skip the reductio ad Hitlerum), but it seems that, institutionally, legislatures with representative lawmakers are much better suited than courts and judges to coping with all the particular, diverse, contradictory sympathies out there in America. Not that deliberation in Congress will disclose, in a philosophic sense, anything true about justice (although it might). But at least in the process of a representative legislature's making a law, the worst passions or most intense sympathies might be moderated, simply by having to take their places alongside a bunch of other ones. Plus, laws can be repealed or revised, again, by representative legislatures. Judicial rulings (especially by courts of last appeal, such as the one where Ms. Sotomayor is headed), cannot.

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