Justice William J. Brennan, Speech to Georgetown Univ., 1985

1. Justice William J. Brennan, Speech to Georgetown Univ., 1985 KEY ELEMENTS: Main theme: Brennan’s interpretation of the Constitution. For Brennan, the Constitution embodies social justice, brotherhood, human dignity, equality, values that contemporary society upholds and ought to be realized in order to produce progressive reform This means that, for Brennan, Constitutional interpretation must keep up with public opinion; the document is a “Living Constitution” in this sense. By this idea, Brennan hopes to avoid the charge that a judicial activist such as he is imposing his own personal moral values on society. Also, the idea means that he rejects the idea of following the Framers’ original intent regarding the meaning of the Constitution.

2. Justice William J. Brennan, Speech to Georgetown Univ., 1985 POINTS FOR CRITICAL REFLECTION: Why can’t the legislative branch be in charge of settling issues and keeping politics “up to date”? Brennan’s answer: because majorities make too many mistakes; wise judges must do it for them. Any reasonable person can see that the things Brennan in particular finds in the Constitution are simply not there. Brennan’s response: the document is “ambiguous,” not “crystalline,” always subject to interpretation. OK, but is it then possible for federal judges to continually play make-believe with the Constitution? And if so, why have the Constitution at all, if we are permitted to continually make stuff up about what it says? And wouldn’t considerable danger arise from having unelected “wise” people doing so?

3. Robert Bork, “The Struggle Over the Role of the Court” KEY ELEMENTS: Main theme: why Bork is opposed to judicial activism (a.k.a. “noninterpretivism”) Primary reason for his objection: it threatens democratic governance insofar as it imposes an unelected judge’s personal moral views on society This is dangerous because there is no shared agreement in society about these moral views In practice, the result is the “gentrification” of the Constitution, meaning that the unrepresentative moral views of a certain elite class in American society are being imposed So what should be the role of a federal judge? To pay attention to the original intent of the Constitution, and “punt” those issues that are not clearly justiciable back to the “political” branches of government

4. Robert Bork, “The Struggle Over the Role of the Court” POINTS FOR CRITICAL REFLECTION: It could be that cases involving contentious moral issues might not be settled quickly or at all by the “political” branches (worst-case scenario example: the Civil War) This means that, in a political environment characterized by sharp and irreconcilable disagreement over moral issues, government-by-judiciary is necessary to keep order. In turn, this might mean that Americans are incapable of democratic self-government. The above amounts to a Hobbesian criticism of Bork. The article does not address this criticism.