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October 30, 2007


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Jon Rowe

I disagree that the Court is not "balanced," but "conservative." And I say this as someone who is a libertarian and not a fan of conservatism. The Court only looks very conservative if one looks at it from far down the left.

I agree with the following:

-- As men of the Enlightenment, the Framers conceived of rights as inherent in nature and “founded on the immutable maxims of reason and justice.” They understood them much as they understood the laws of science. That is, just as they knew that they did not know all there was to know about biology and physics, so too did they know that they did not know all there was to know about their rights. Just as reason, observation and experience would enable man to gain more insight into philosophy, science, and human nature, so too would they enable him to learn more over time about man’s inalienable rights, which would have to be distilled from “reason and justice.” --

I'll note the content of those rights don't change at a particular level of generality. They are what the text says they are: Free Speech, Free Exercise of Religion, Equal Protection, Life, Liberty, Property. The rights, at the particular level, were meant to "evolve" over time in their understanding. They ought not evolve willy nilly according to judges' whim, but rather consistent with the Constitution's text and internal logic of those constitutional principles.


I thought this was a pretty good piece right up until the discussion of "conservative activism." The explanation of why this was the worst of all approaches was conclusory an unpersuasive. In fact, after descriptions of the problems with the prior forms of conservatism (which actually were persuasive) teh result was that conservative activism seemed pretty good in comparison. The problem with "constitutionalism" is that it depends on how one conceives of "our nation’s most fundamental constitutional aspirations". To someone of my biases the results of such a "constitutionalism" would seem more akin to those of the "conservative activists" rather that the list of likely results listed. Indeed, I found the prospect of most of those results frightening. I nevertheless appreciated the candor of the piece and found it pretty interesting.


Consider typing your name as "Geoffrey Stone". "geoffreystone" looks stupid.


Thanks for the incredibly informational and detailed article.


Professor, I think you are contradicting yourself. As you noted at the beginning, there is a strong selection bias in Supreme Court cases. The Court takes only close cases, and it is not surprising that the "conservative" justices reach comparatively conservative results.

You then assert that the conservative justices are particularly activist because of their decisions in the very cases that result from this selection bias. Either the selection bias makes the Supreme Court's actual decisions a relatively unreliable indicator of ideology (except relative to other members) or it does not.

To take a simple example, of course Justices Rehnquist, Scalia, and Thomas had a 100% voting record on affirmative action. That is because affirmative action is a hot issue, and the conserative justices are to the right of Justices O'Connor and Kennedy on the issue. The reason that there are no equal protection cases where Justices Rehnquist, Scalia, and Thomas voted the other way is not some neferious plot but rather the simple fact that a case of racial discrimination against a minority member will not reach the Supreme Court -- the issue is completely settled. To say that Justices Rehnquist, Scalia and Thomas use the Equal Protection Clause only to strike down affirmative action is quite unfair considering the selection bias that affects the cases they have opportunity to hear.


This "judicial activism" was one of the things brought up in The Federalist Papers, the power of the Supreme Court to interpret laws was not considered a good thing. In fact, the arguement is made that the power of impeachment being rested in Congress was a check on this, as well as the ability of Congress to rewrite laws if the Court was to activist. While some modern scholars may appreciate the courts activism, I doubt the framers of the Constitution viewed at favorably.

"What made these Justices “liberal”? To begin with, they shared a common vision of the purpose of judicial review. They believed that a primary responsibility of the judiciary is to protect individual liberties, and most especially the rights of minorities and others whose rights might not be fairly protected in the majoritarian political process.

Nor do I feel the definition of a liberal Justice is something to be upheld as the proper course of the court. Just as enforcement of the law is to applied blindly, with eye to neither the view of the majority or the minority, but equally to all. Access to the courts must be applied blindly, neither the minority or the majority should have the greater rights, but only the same, and equal rights.

If the minority has a greater chance to opportunity or justice, then the danger exists for the minority to subjugate the majority. If the majority has a greater chance or opportunity for justice, then the danger exists for the majority to subjugate instead. Both have occurred throughout history.

Kimball Corson

A truly sweeping framework for thought and analysis that reaches in every direction and captures the core elements for consideration. Too much of what too many of us misunderstand are not so much the technical details, but the fundamental nature of our legal institutions and what the framers sought to have them do.


You write, "Constitutionalism is not mechanical, it is not mindless, it is not value-free."

It seems to me that you criticize conservative activists for imposing their values, willy-nilly, on the country. If a judge is not to rely on personal values, which values do you suggest? What would the source of those values be?

Conservatives object to liberal values and vice versa. While my personal biases might incline me to one side over another, and while I can give you solid reasons for those inclinations, the same can be said of others who reach opposite conclusions. If the Supreme Court generally takes cases that will result in 5-4 decisions, and the Justices rely on their values (one hopes not mechanically and mindlessly), will not the closest cases always come down to what the majority thinks is right?

Will those values be the tiebreaker when arguments are in equipoise?

I wholeheartedly agree that the process should be neither mechanical nor mindless; I see no way of avoiding reliance on values, nor do I think law can be value-free the way, for example, math is. But which values?

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