- The Washington Times - Saturday, March 13, 2004

At the heart of the common law tradition is the continuous adjustment of legal principles and rules to customary practices. Justice Felix Frankfurter gave expression to this fact when he declared in an early 1950s case that the due process clause of the 14th Amendment proscribes conduct that “shocks the conscience” of the people.

Since what shocks our conscience can, and does, change over time, the task of keeping legal doctrines and procedures up-to-date never ends.

Not surprisingly, Frankfurter considered judges to be major players in the whole governing process. He was no believer in “mechanical jurisprudence” which, for him, undercuts the statesmanlike role that judicial officials should occupy in the constitutional system.

But if he held to an elevated view of the judicial role, he never forgot the Constitution envisions a fundamentally democratic system of government. Hence, he cautioned federal judges to show due respect for the wishes of the states, and he reminded all judges to respect the will of the people.

Respect for state policies and popular convictions, of course, constituted only one of the dimensions of responsible judicial reasoning for Frankfurter. There were other considerations (for example, clear constitutional mandates) that might warrant federal rejection of state action or majoritarian prejudices. Still, Frankfurter’s intent was to ensure that judges would be self-conscious and self-restraining actors disinclined to take the lead in promoting cultural or political change.

What is reflected in the 9th U.S. Circuit Court of Appeal’s decision to uphold a challenge to public school recitations of the Pledge of Allegiance, or the Supreme Court’s decision to overturn Texas’ sodomy law last summer, or the recent ruling by the Massachusetts Supreme Judicial Court regarding same-sex “marriage,” is a willingness on the part of judges to take the lead in crafting legal rules to fit a particular understanding of an ideal democratic culture or of what things should shock the conscience of the people. This approach to decisionmaking not only situates the judiciary at the front of cultural or social change, but undercuts its role as the principal protector of the dignity and stability of the law in the United States.

While the Founders surely appreciated the adaptability of the common law, they also understood the importance of stability in a legal system. James Madison made this point forcefully in a reply to Thomas Jefferson’s endorsement of generational reviews of public policies. Madison reminded his friend that public rights depend for their security on the respectability of laws and this, in turn, is advanced by intergenerational continuity.

Political and legal scholars have long argued that time lends dignity and respectability to laws, while variability weakens respect and general habits of law-abidingness. Madison, for example, spoke in the Federalist Papers of the “veneration which time bestows on everything, and without which perhaps the wisest and freest governments would not possess the requisite stability.”

Madison’s counsel should never be far from the deliberations of all judicial officials, state and federal. If anything, judges should err in the direction of continuity rather than change. Legislative bodies are well positioned to reform established practices; judicial officials should be poised to jump in only on extraordinary occasions. The judiciary should be less interested in updating social practices or advancing social consciousness than in promoting respect for legal rules.

The proper response to the charge that respect may be undermined if social customs or legal rules stagnate is twofold:

c First, let the public hold political officials accountable for addressing pressing needs.

c And, secondly, we should never forget there really are “no free lunches.” Promoting respect for the laws may indeed result in delayed responses to some real problems. The Founders were not blind to this, but they made their peace with the fact they were devising institutions for human beings and not gods or angels.

As a general policy, it may be more prudent to promote respectability through continuity than to keep human affairs in continuous flux in an attempt to actualize aspirational principles.

Madison recognized full well what he was saying when he declared the “first object” of the delegates at the Constitutional Convention was to come up with a government that would be able to “control the governed.”

He also knew controlling the governed without reliance on authoritarian institutions would depend on cultivating respect for the laws of the republic. There is a clear correlation between restrictions on personal freedoms, including privacy rights, and the absence of general law-abidingness on the part of the people.

Institutions alone, even if perfectly crafted, will not secure the great aims set out in the Preamble to the Constitution. Good judgment is even more important than sound institutions.

Rather than being inconsistent with the principles of the American constitutional order, judicial statesmanship is one of the necessary pieces of our political system.

As in the case of legislative and executive officials, true statesmanship on the part of judges necessitates proper attention to the conditions that make for a decent and competent democracy. Those conditions include a healthy respect for our laws, and that respect is best promoted by the avoidance of a policy of continuous reforms intended to modernize legal rules.

The judiciary should make us think twice or even three times before we redefine words such as “due process of law,” “liberty” or “equality” that appear in the federal and state constitutions. Practices and shared convictions that have survived for generations should not be lightly discarded.

If constitutional and legal principles are to have any stability and credibility, they must have a meaning rooted in something more permanent than the passions of the times.

If we can pour any meaning we wish into constitutional clauses, their value to us is considerably diminished. This is not the same as saying there should never be any movement to modernize legal principles and rules. It is to say significant reformulations or modernization of legal processes should come after deep reflection and proper public deliberation.

Self-government, after all, was one of the great gifts of the Founders. This should be the message the Supreme Court sends when it rules in “culture war” cases, including the Pledge of Allegiance case.

No other institution of government is as well positioned as the judiciary to counsel sobriety and restrain our pursuit of the “new and improved.” To say that this often is a thankless job is an understatement; but it also is an understatement to say it is a supremely necessary job and one elected officials eagerly find excuses to avoid.

Judicial statesmanship of the restraining and sobering variety merits at least two and a half cheers.

David Marion is Elliott Professor of Political Science and director of the Wilson Center for Leadership in the Public Interest at Hampden-Sydney College.

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