Thursday, September 29, 2005
I appreciate the most recent comments from Eric Claeys and from Rick on the "Can enforcing federalism create a moral conflict?" question. Since RIck and I have gone back and forth already on this, let me focus on Eric's arguments. Most of them rest on the negative consequences that would follow if judges purposely disregarded proper principles of constitutional interpretation in order to avoid a moral conflicts (e.g.: "If the judge turns a blind eye to the original meaning of 'interstate commerce' here, he lays down one small but unmistakable precedent for judges disregarding text for policy preferences in other cases"). I want to make clear that I would not advocate a justice/judge misinterpreting the Constitution as the means of avoiding a serious moral conflict. The proper course in a case of such conflict would be to recuse oneself or, if that option is not available (though I think it should be), resign.
I still wonder: if a justice who blocked any effective attack on widespread, oppressive discrimination by striking down the Civil Rights Act would not be impermissibly cooperating with great injustices, then I wonder whether the same defense couldn't be offered for the justice who votes to uphold abortion rights and thereby let abortions go forward? After all, if applying judicial review to block a law in the one situation is cooperation with evil only "to some remote degree" (as Eric puts it), then it seems the cooperation logically would be remote in the abortion case as well. And while, as Eric notes, there are valid and important arguments for federalism and subsidiarity in general (even if the application of federalism in a particular case lets a terrible evil go forward), there are also valid and important arguments for rights of personal privacy in general (even if their application in the abortion case lets a terrible evil go forward).
This takes us back full circle to Rick's original post on the subject, which argued (if I characterize it correctly) that the problem with the justice who upholds abortion rights under the federal Constitution is not that s/he is conflicting with Catholic moral theory but rather that s/he is misinterpreting the Constitution because abortion rights cannot be derived from the text, history, and structure. And that led to my comment that while I agreed about the merits of the constitutional issue, a justice might with somewhat more plausibility adhere to Roe and Casey because of stare decisis concerns than because of their correctness on the merits.
And since we've already gone through the ensuing progression of posts, I think I'll leave it there; RIck and Eric are welcome to the last word if they wish.
Just to sum up my main point: People need to be consistent in the standards they apply to justices. If, as RIck has consistently argued, Kennedy is wrong in Casey simply because he's misinterpreting the Constitution, fair enough (and I certainly agree about the misinterpretation). But if, as I've heard argued by others, Kennedy was wrong (independent of the correctness of the constitutional interpretation) because he was cooperating with evil in upholding abortion rights, then the same moral stricture would apply against Roberts upholding Roe and Casey because of precedent, or against the conservative justice who struck down the Civil Rights Act.