Legislating from the bench.

I appreciate Cathleen Kaveny's timely essay, "Letter v. Spirit (December 16, 2005). Kaveny is right, of course, that "good judges do far more than apply the law" and that "the real question is how"--not whether--" a justice will approach the task of constitutional interpretation." But President George W. Bush's "mantra" that Kaveny criticizes--that he wants judges who will not "legislate from the bench"--is quite consistent with her observation. To want a judge who will not legislate is not to demand, or to imagine, a judge who refuses to interpret; it is to want a judge who will interpret the Constitution appropriately--that is, in a way that is democratically legitimate and that is consistent with the text, history, and structure of that document and the government it constitutes.

Kaveny notes that "we have to ask how we should make sense of the 'basic law' of our country today, which faces responsibilities and challenges the Founding Fathers could never have imagined." The primary challenge we face, though--one that the founders could and did imagine--remains the challenge of exercising self-government responsibly under and through a written constitution. That many of the difficult moral and policy questions presented today were not contemplated even by the most engaged minds of the eighteenth century is not surprising. Still, the Constitution they drafted and ratified is more about structuring government and allocating decision making and legislative authority than about providing--or authorizing federal judges to provide--answers on the merits of difficult new moral questions.

Yes, "an approach rigidly focused on the explicit provisions of the text and the intention of the framers is both theoretically and practically inadequate," but rigidity usually is. The question is whether a different approach--one that would authorize and encourage judicial invalidation of democratically crafted policy choices on the basis of unelected judges' understanding of "political ... realities"--is legitimate. To insist on the importance of this question is not to define the right approach to constitutional interpretation "solely in terms of outcome" or to raise doubts about the justice of the holding in Brown v. Board of Education.

RICHARD W. GARNETT

Notre Dame, Ind.

THE AUTHOR REPLIES:

My colleague Richard Garnett thinks my complaint is misplaced because Bush's mantra reasonably protests "legislating from the bench." But Garnett quotes only half the mantra. Bush repeatedly calls for judges who "will strictly apply the Constitution and laws, not legislate from the bench." As I stated in my first paragraph, I object to that mantra because it creates a false dichotomy. Garnett thinks it obvious that the president didn't mean to rule out the essential tertium quid of interpretation. Obvious to whom? Many non-lawyers aren't familiar with the disciplined creativity that legal interpretation regularly involves. I fear that Bush's mantra misleads voters by implying that much legitimate interpretation is illegitimate judicial legislation.

The rest of Garnett's letter raises issues I didn't address in my column; they deserve brief comment. He suggests the Constitution is more concerned with setting up government structures and establishing lines of authority than with addressing moral issues and emerging social realities. I don't agree. What about the Bill of Rights? Or the antislavery amendments? And even structural questions have controversial moral and social implications. We can't ignore the torture memos, where Bush administration lawyers argued that Congress has no constitutional authority to outlaw torture authorized by the president in prosecuting the war on terror.

Garnett's main worry is judicial tyranny; he fears judges will usurp the rightful place of democratically elected representatives in making policy on controversial moral and social issues like abortion or gay marriage. That is certainly a reasonable worry. But I don't think it's best addressed by adopting a truncated approach to constitutional interpretation, such as Antonin Scalia's textualism or Garnett's own prioritization of governmental structure over moral substance. Furthermore, untempered focus on the dangers of an activist judiciary can make us less vigilant against other sources of tyranny equally repugnant to the framers. Congress has threatened to eliminate federal court jurisdiction over petitions for the writ of habeas corpus filed by suspected terrorists. The president has defended domestic spying without judicial authorization. With all due respect, I don't think that the judicial branch poses the most immediate threat to our constitutional democracy.

CATHLEEN KAVENY