Strengthening Constitutional Self-Government

No Left Turns

Judges and politicians

E. J. Dionne, Jr. thinks that it’s a good thing for politicians to discuss their faith in the public square, especially when it has some bearing on the positions they take. I agree.

But a judge is not a politician, a distinction that seems to be lost on all those who think judges "make law" (an expression I first heard out of the mouth of NPR’s Nina Totenberg almost twenty years ago when she lectured on my campus). Being guided by one’s conscience in lawmaking is one thing. But judges are called to interpret and apply the law, not enact the contents of their conscience. Dionne’s position, Durbin’s alleged query, and all the brouhaha about William Pryor’s "deeply held beliefs" all take for granted an understanding of adjudication as activist lawmaking or constitution-writing. And while I’ll take Dionne’s word for it when he agrees with conservatives that "religiously inspired voices have a legitimate place in the public square," Senator Durbin and his colleagues are playing the religion card to insinuate that some voices (or consciences) don’t belong on the bench. By failing to distinguish between judging and legislating, Dionne is offering cover to those who would mutter about divided loyalties and imply that the law cannot be consistent with religiously orthodox moral and social teaching.

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One can argue how important the common law is these days, but in common law jurisdictions judges do actually make, well, common law. At the time of the making of the original US constitution, the common law played a huge role in forming the judicial consciousness; as Tom Grey and my former colleague at Toronto Jenny Nedelsky have shown, common law ideas played a big part in the way the framers understood adjudication and law. If you read the debates at founding, it is very interesting to see the different points of view on the proposal of a judical council of revision that would be involved in the review and reform of legislation. Some of the framers definitely wanted to keep legislation and adjudication seperate and for that reason rejected this idea; others rejected it for other reasons. It got support however from some of the main architects of the founding, even if it didn’t ultimately succeed.

On religion in public life, have you read Joseph Weiler’s "Christian Europe"? (It is available in either Italian or German). Very interesting argument by an orthodox Jew and law professor at NYU that the Judeo-Christian nature of Europe should be in the (now on hold) European constitution. This is a sustained, thoughtful, if sometimes infuriating reflection on religion in the politics of contemporary liberal democracies.

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