From The Wall Street Journal, The Temptation of the ‘Common Good’ by David Rivkin and Andrew Grossman:
But originalism and textualism defer to the morality wrought in the law by those who enacted it. The duty of a judge in a system of self-government is to exercise “neither Force nor Will, but merely judgment,” Alexander Hamilton wrote in Federalist No. 78. Or as Scalia put it in his dissent from Planned Parenthood v. Casey (1992), “Value judgments . . . should be voted on, not dictated.”
The Constitution doesn’t codify the common good, let alone appoint judges as its inquisitors. The Framers, as students of history, understood that mankind is fallible and that a government powerful enough to prescribe moral truth could achieve only tyranny. Rather than put their faith in the beneficence of statesmen, they established a structure that pits faction against faction to “secure the blessings of liberty,” as the preamble puts it. James Madison thought self-government “presupposes” public virtue, which can’t be dictated, only sown in the soil of freedom.
As in theory, so too in practice. Moral truth isn’t the output of any government program or court decision. It is cultivated by families, communities and civil society. It has long been the progressive tendency to seek a governmental mandate for the perfection of man and the conservative tendency to resist. The court decisions that social conservatives bemoan—from Roe v. Wade on down—can’t be criticized for failing to take a position on moral truth, only for imposing a progressive vision by judicial fiat. A jurisprudence of restraint, one that recognizes the proper limits of government, preserves the space necessary to practice moral values—ask the Little Sisters of the Poor or Catholic Social Services of Philadelphia.
There is no contradiction between the conservative legal movement’s pursuit of limited government and the common-gooders’ substantive ends. Genuine limits on government power protect the dignity and worth of the human person. The court’s history proves the point. When it has traded away constitutional command for popular notions of the common good, the result has been moral tragedy. Buck v. Bell (1927) approved compulsory sterilization of the “manifestly unfit” as a “benefit . . . to society.” Kelo v. New London (2005) regarded government’s taking homes from families for the benefit of a private corporation as “the achievement of a public good.” Yet the common-good quartet deride “the pursuit of limited government” as amoral, a hobbyhorse of the “individual liberty-obsessed.”
A letter to the editors expanded on this. From Keith Whittington, What Good is Common Good Constitutionalism?:
Regarding David Rivkin and Andrew Grossman’s “The Temptation of the ‘Common Good’” (op-ed, July 24): There is always a temptation to seek a shortcut around the hard work of politics and persuading our fellow citizens to embrace the principles and practices that we think are right. Theories of judicially enforced “living constitutionalism” have long sought precisely such a shortcut. Jurists like William Brennan argued that judges should impose the rule that they think best and hope that the people would eventually come around to accepting the rule, and the imposition, as just.
Unfortunately, on this dimension the common-good constitutionalists are not so different than the living constitutionalists of a half-century ago. They take their bearings from a different moral compass, and they promise results that will win plaudits from the right rather than the left. But they share the same basic impatience as the judicial activists of yore. Why wait until one can build popular majorities and win elections on your policy platform when unelected judges could give you the results now? Why should judges rely on broadly accepted principles of limited government when they could instead enforce polarizing but substantively rich principles of the public good? Why should judges limit themselves to democratically endorsed legal standards and sources when they could draw on the deep well of moral philosophy for insights into better governance?
Conservatives once saw the dangers of imposing moral values from the bench and appreciated the modest virtues of fighting for sometimes partial and transitory victories in the arena of democratic politics. The hope that legal elites will embrace the common-good constitutionalists’ favored moral truth seems like a fantasy—and not one we ought to want to pursue in a pluralistic democracy.
Is the support of judicial activism contingent on who occupies the bench? We may disagree on the issues but we are supposed to be united in the means.