Judges' Moral Views: Interpreting The Constitution

The question of whether judges should read their moral views into the constitution is a highly debated topic. Some argue that judges should adhere to the original intent of the Framers to prevent their personal values from influencing their interpretation of the law. Others believe that judges should engage in moral reasoning and consider contemporary values when interpreting the constitution. Critics of this approach argue that judges should not be moral arbiters and that ethical arguments are not objectively verifiable. Proponents of pragmatism suggest that this approach allows the Court to issue decisions that reflect changing societal circumstances. The role of judges as moral reasoners and the impact of their moral views on constitutional interpretation remain subjects of ongoing discussion and analysis.

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Judges as moral reasoners

The question of whether judges should read their moral views into the constitution is a complex and highly debated topic. Some argue that judges should not be "moral arbiters", as ethical arguments are based on principles that are not objectively verifiable, and judges may end up deciding cases according to their personal policy views. This is where the concept of “original intent” comes into play. Proponents of this approach, including influential conservative legal scholar Judge Robert Bork, argue that judges must adhere to the framers' intentions to prevent them from imposing their moral or political views. Bork's views significantly shaped conservative legal thought, emphasizing that the “framers' intentions are the sole legitimate premise from which constitutional analysis may proceed”.

However, critics argue that determining a single "intent" or "meaning" from the framers is challenging due to their diverse and conflicting views. Additionally, the “Dead Hand” problem ties modern society to the values and beliefs of the past, which may not align with evolving moral standards. This is where the role of "Judges as moral reasoners" comes into the picture. Some scholars argue that judges should engage in conscientious individual moral reasoning, rather than solely relying on formalistic obligations to apply positive law. They claim that judges should reason autonomously, using their moral convictions to guide their decisions.

Ronald Dworkin, a prominent scholar in this debate, argues that the kind of reasoning that occurs in the Supreme Court of the United States ensures that fundamental issues of political morality are debated as issues of principle rather than political power alone. Dworkin acknowledges that judges' political morality influences their constitutional decisions, and this "moral reading" of the Constitution is common in mainstream constitutional practice in the United States. However, this view is often dismissed as "extreme" by constitutional scholars, who argue that judges should not have the final interpretive authority as it is elitist and undemocratic.

The counterargument to this is presented by Hand, who believed that courts should only take final authority to interpret the Constitution when it is necessary for the survival of the government. Hand's view suggests that it is wrong for judges to test legislative acts against the Constitution's moral principles. Instead, proponents of textualism argue that focusing solely on the objectively understood meaning of the Constitution's text promotes democratic values and prevents judges from imposing their personal views.

In conclusion, the debate around "Judges as moral reasoners" is multifaceted and deeply rooted in legal and political philosophy. While some argue that judges should engage in moral reasoning and use their convictions to guide their decisions, others caution against it, advocating for a more objective and text-based interpretation of the Constitution. The balance between judicial moral reasoning and their responsibility to find and apply the law is a delicate one, and it remains a highly contested issue in legal circles.

Original intent vs textualism

Original Intent and Textualism are two of the most significant philosophies on how to understand the Constitution. They influence how judges, especially Supreme Court Justices, decide cases that shape laws and rights.

Original Intent is a judicial philosophy that interprets the Constitution according to the intentions of those who wrote and ratified it at the time of its creation. It believes that the Constitution's meaning was fixed when it was created and does not change with evolving societal values unless formally amended. Original Intent aims to prevent judges from imposing their moral or political views, thus "tempting" them away from their proper judicial role. Judge Robert Bork, a highly influential conservative legal scholar, powerfully advocated for Original Intent, arguing that the "framers' intentions are the sole legitimate premise from which constitutional analysis may proceed."

However, critics of Original Intent argue that determining a single "intent" or "meaning" from diverse and conflicting Framers' views is challenging. The "Dead Hand" problem ties modern society to outdated 18th-century values, beliefs, and social understandings. Additionally, historical evidence may be ambiguous, incomplete, or silent on modern constitutional law issues. There is also the Exclusion Problem, where the "public" understanding sought by originalists was not inclusive. Furthermore, strict adherence to original meanings from an era with different social norms may fail to protect minority rights or promote contemporary welfare.

Textualism, on the other hand, is a theory of legal interpretation that asserts the primacy of the text itself. It focuses on interpreting the Constitution based on the ordinary meaning of the text, setting aside extra-textual considerations like intent. Textualism gained significant traction in the late 20th century as a reaction against interpretive methods that gave judges too much leeway. Justice Antonin Scalia, a leading textualist, tirelessly advocated for its objectivity, constraint on judicial discretion, and foundation in democratic accountability. Textualists argue that legislative history is often unreliable and selectively cited, making the pursuit of "legislative intent" speculative and prone to judicial manipulation.

While Original Intent and Textualism differ in their approaches, they both aim to provide a framework for interpreting the Constitution. Original Intent focuses on the intentions of the Framers, while Textualism emphasizes the ordinary meaning of the text. The debate between these two philosophies highlights the ongoing discussion about the role of judges' moral views in interpreting the Constitution.

The role of the judiciary

Proponents of this view, such as Judge Robert Bork, advocate for "original intent" or "textualism", where the interpretation of the Constitution is guided solely by the meaning of the language used, independent of the judge's ideology and politics. This approach is believed to promote democratic values and prevent judges from imposing their moral or political views on the law, thus maintaining the "proper judicial role". Bork's views have significantly influenced conservative legal thought, despite his controversial nomination to the Supreme Court being rejected.

However, critics argue that strict textualism can be challenging due to incomplete or ambiguous historical records and the evolving nature of social norms and moral standards. They contend that the Constitution should be interpreted pragmatically, taking into account contemporary values and the political and economic circumstances surrounding legal issues. This view suggests that the Constitution is adaptable to changing societal circumstances and reflects the proper role of the judiciary.

Additionally, some scholars, like Robert Cover, argue that individual moral reasoning is an essential aspect of judicial decision-making. They believe that judges should not merely apply formalistic legal obligations but should engage in conscientious moral reasoning. This perspective suggests that judges are better equipped than legislatures to make moral decisions regarding individual and minority rights.

Ultimately, the role of the judiciary is a delicate balance between interpreting the law as it is written and applying moral reasoning to address evolving societal issues. While judges are expected to remain impartial and faithful to the existing law, the complexity of constitutional interpretation allows for varying approaches and perspectives.

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Historical interpretation

The interpretation of the Constitution has evolved over time, with different schools of thought emerging. Originalism, for instance, asserts that judges should adhere to the intentions of the Framers to prevent the imposition of personal values on the law. This view, championed by conservative legal scholar Judge Robert Bork, gained prominence in the latter half of the 20th century as a response to perceived judicial activism. Bork's ideas significantly influenced conservative legal thought, despite his controversial nomination to the Supreme Court being rejected.

However, critics argue that determining a single "intent" from the Framers is challenging due to their diverse and conflicting views. Additionally, critics point out that the Framers' values and beliefs may be outdated and ill-suited for modern problems and evolving moral standards. Historical evidence may also be ambiguous or incomplete, and the “public” whose understanding originalists refer to may not have been inclusive.

Another perspective is that of textualism, which focuses solely on the objectively understood meaning of the text, independent of ideology. Proponents of textualism argue that it prevents judges from imposing their personal policy views and promotes democratic values by adhering to the words of the Constitution as adopted by the people. On the other hand, opponents argue that judges may ascribe different meanings to the text due to their backgrounds and that textualism may not address fundamental constitutional questions.

In contrast, some scholars advocate for a living document interpretation, where the Constitution is viewed as flexible and capable of evolving to find protections for individuals. This perspective is often associated with liberal justices who are less likely to rule in favour of the government.

The debate surrounding the role of judges' moral views in interpreting the Constitution is complex. Some argue that judges should engage in moral reasoning and that this aspect is inseparable from their other responsibilities. Ronald Dworkin, for instance, suggests that the Supreme Court's reasoning "insures that the most fundamental issues of political morality will be finally set out and debated as issues of principle and not political power alone." However, critics argue that judges are not trained historians and may selectively interpret historical evidence to support their pre-existing ideological views.

Additionally, there is a tension between the mainstream constitutional practice in the United States, which relies on the moral reading of the Constitution, and the mainstream constitutional theory, which rejects this reading. Judges' decisions are influenced by their views on political morality, yet they rarely acknowledge this influence, instead attributing their rulings to historical "intentions" or constitutional "structure." This disconnect contributes to a misunderstanding of the constitutional system by the American public.

The influence of personal values

Proponents of textualism argue that focusing solely on the objectively understood meaning of the Constitution's text prevents judges from imposing their personal views, leading to more predictable judgments. They further argue that textualism promotes democratic values by adhering to the words of the Constitution as adopted by the people, rather than individual justices' interpretations.

However, opponents of strict textualism argue that judges may ascribe different meanings to the text depending on their backgrounds, and that some values may not be explicitly set forth in the text. They suggest that judges should consider contemporary values and interpret the Constitution in a way that reflects changing societal circumstances.

The role of personal values in judicial interpretation is further complicated by the idea that judges are expected to engage in moral reasoning when applying constitutional standards. Some commentators claim that judges should reason autonomously, using their individual moral reasoning, while others argue that judges have a duty to the views of others as embodied in the law, even when those views conflict with their personal morals.

Additionally, the historical context of the Constitution's creation can influence judicial interpretation. Determining a single "intent" or "meaning" from the Framers and Ratifiers, who had diverse and sometimes conflicting views, is challenging. Critics argue that strict adherence to original meanings may fail to protect minority rights or promote contemporary welfare, as the Framers could not have foreseen modern issues.

Ultimately, while judges are expected to interpret the law impartially, their personal values and moral reasoning likely play a role in their constitutional interpretations. The challenge lies in balancing the influence of personal values with the need for objective, consistent, and democratic judicial decision-making.

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