July 25, 2005

Worse than the Holocaust?

Cass Sunstein's typology of all the various modes of legal reasoning seems very helpful:
In order to determine what kind of justice [John G. Roberts] will be, it helps to understand the philosophical camps that have shaped modern constitutional theory. Over the past century, justices have come in four varieties. Majoritarians prefer to uphold the decisions of other branches of government unless those decisions clearly violate the Constitution. Perfectionists believe that, in order to perfect the Constitution, they should interpret it in broad terms that expand democratic ideals. Minimalists like small steps and prefer rulings in which the most fundamental questions are left undecided. And, finally, fundamentalists believe that the Constitution should be read to fit with the original understanding of the Founding Fathers; they are willing to make large-scale changes to established laws to return to that understanding.
His defense of judicial minimalism—ruling narrowly and setting aside judgment on fundamental questions—is also quite elegant: "[L]aw, and even social peace, are possible only because people set aside their deepest disagreements and are able to decide what to do without agreeing on exactly why to do it." Although one should also note that to a large degree, the social peace has been kept ever since the most notorious of majoritarian—or maybe perfectionist—rulings: Roe vs. Wade. Which is really quite remarkable, given that here you have a bunch of people who believe that legalized abortion is worse than the Holocaust, yet most of them are willing to uphold and support a government that enforces this law.

Obviously there are a few clinic-bombers here and there, but we never see social disobedience on a very broad scale. Judged solely by their actions, it sure seems like the Civil Rights protesters in the 1950s and 1960s felt far more strongly about their cause than pro-lifers do about theirs. Again, whatever, people can do what they want, but you'd think something worse than the Holocaust would incite a bit more in the way of drastic action. Anyway, that's just to say that the "social peace" argument for judicial minimalism probably deserves some skepticism. To some extent the country isn't tearing itself apart; overruling Roe, likewise, would be horrendous beyond belief, I think, but it wouldn't upend the existing social order. Oh, and Sunstein thinks that Roberts is probably a minimalist, though the guy does exhibit some fundamentalist tendencies here and there; that's certainly something to ferret out during the hearings.

UPDATE: I should've googled around before posting this, because a quick search shows that the question of whether anti-abortion protestors are justified engaging in civil disobedience is actually a somewhat heated one among religious conservatives. The most obvious objection, of course, is that all the legal avenues to overturning abortion rights have not yet been exhausted, so it doesn't make sense for abortion foes to engage in widespread civil disobedience. Sorry, but that's a cop-out. Imagine this hypothetical scenario: Hitler is in charge of Germany, freely elected, and decides to fire up the concentration camps. He still has three years left in his term, and can be voted out at that time, so the country's citizens say, "Well, this genocide business is pretty bad, but we shouldn't defy the Hitler administration by extra-legal means when we have perfectly legal means of voting him out"? In a sense, that's what pro-lifers, at least those who believe that legalized abortion is worse than the Holocaust, are doing by biding their time, trying to win elections and get Roe v. Wade overturned by legal means.
-- Brad Plumer 5:28 PM || ||