Constitutional Conscience: The Moral Dimension of Judicial Decision
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| Constitutional Conscience: The Moral Dimension of Judicial Decision | |||||||||||||||||||||||||||||
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While many recent observers have accused American judges—especially Supreme Court justices—of being too driven by politics and ideology, others have argued that judges are justified in using their positions to advance personal views. Advocating a different approach—one that eschews ideology but still values personal perspective—H. Jefferson Powell makes a compelling case for the centrality of individual conscience in constitutional decision making. Powell argues that almost every controversial decision has more than one constitutionally defensible resolution. In such cases, he goes on to contend, the language and ideals of the Constitution require judges to decide in good faith, exercising what Powell calls the constitutional virtues: candor, intellectual honesty, humility about the limits of constitutional adjudication, and willingness to admit that they do not have all the answers. Constitutional Conscience concludes that the need for these qualities in judges—as well as lawyers and citizens—is implicit in our constitutional practices, and that without them judicial review would forfeit both its own integrity and the credibility of the courts themselves. |
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| 06-19-08 | 5 | 1\1 |
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The American constitution governs everything and everyone in America - or does it? When difficult situations create opportunities for diverse opinions as to whether the act in question was constitutional, the United States Supreme Court, by a majority of five, will determine decide what the answer should be. How does it do so? There are many books and opinions within the Supreme Court, in academia, and among lawyers as well as the public expounding the correct approach the Supreme Court should take in interpreting the constitution. Some like Justice Antonin Scalia are persuaded that formalism and originalism (not quite the same thing - the former sticks to rigid rules that bind judges in every generation, the latter a method of interpretation based on deciphering the intention of the framers of the constitution). Others like Ronald Dworkin eschews conformism to precedents merely for the sake of consistency and discipline. He prefers a more liberal approach based on moral principles (the irony is that many such principles, in fact, become rigid principles). H J Powell offers a different perspective to constitutional interpretation. He believes that difficult constitutional questions often may not have right or wrong answers. What matters in such situations is that the decision maker (he does not confine this noun to jsut the Supreme Court; he includes congress and anyone charged with having to interpret the constitution for whatever purpose) must act in good faith, encompassing honesty and humility. How this is achieved is not entirely clear, but Powell takes the reader through different circumstances in which alternative approaches are tested, and each time, flaws become apparent. The solution, favoured by the author, in such situations requires the decision maker acting fairly and in good faith. Methodology is one thing, but the person who has to choose which method and how to apply it is also important. The reader will nonetheless, be left wondering if this merely swithes the nature of the basic problem. In other words, a Right wing Christian will take one route and a secular liberal the opposite route. Both are likely to be sincere and would likely act in good faith. The problem that remains is that we are still unsure how to determine which is the right route; and thus, good faith may, in the end, be just an act of sweeping dirt under the carpet. The fact that Powell makes us think about these situations, and what might happen when good faith is absent is a compelling reason to read this book.
(Review Data Last Updated: 2008-10-08 03:05:25 EST)
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