Judicial Morality

May 2005


Choosing between obedience to the law or obedience to one's private conscience is seldom easy. How do we want people in government to choose?

Sir Thomas Moore said: "Statesmen who sacrifice their private conscience in pursuit of the public good lead their countries by a short route to chaos."

We want people of strong principles in our government, largely because we all know the inevitable ruin that comes from letting foxes loose in the hen house. But we have a strong preference for people whose principles and prejudices are identical to our own. That's tough for a representative government that is supposed to reflect most of our main points of view, however much we differ and disagree with one another.

The following case and counterpoint were posed on a radio program I heard a few days ago:

My answer, in both cases? Every judge has sworn to uphold the law. If they cannot do that in good conscience, they ought to resign. In a vastly improved world, if legislators enacted legislation that was wrong, you'd figure it out pretty quickly because most of the judges would resign.

But in a practical world -- one incomparably more complex than Moore's (500 years ago) -- judges must occasionally defer to the law at the expense of their private consciences. At the same time, no judge can be perfectly impartial or totally rational about the law, especially when they do hold strong personal beliefs.

And that is why we're having such a huge fight in our federal government right now over the way judges are appointed and confirmed. Stated simplistically, there are two sides:

  1. People who believe in moral government, where public servants enforce their beliefs upon the rest of us, regardless of our beliefs.
  2. People who believe in the right of every citizen to self-determination and self-governance, within the rule of law, regardless of our beliefs.

The central issue (again) is the principle of universality: everyone is equal -- everyone has a conscience and an equal claim to being right. If you and I disagree, it is just as wrong for you to require that I do something I consider wrong as it is for me to make you do something that you think is wrong. It would be just as wrong to pass a law obliging everyone to be (or pretend to be) heterosexual, regardless of their beliefs as it would be to pass a similar law that required everyone to be homosexual. Both laws would be equally bad.

Many of the current administration's judicial appointees have no allegiance to either Universality or the Constitution. They seek to impose a different view of jurisprudence: authoritarian moralism. They think that our judiciary has erred too far in recognizing and upholding individual rights. There is a really good reason for this view: recognizing and upholding the rights of individual citizens often prevents corporations from realizing opportunities for profit. They realize that some people believe our legal system has been "too liberal" in recognizing and upholding the rights of every citizen, and because of this they have a really good chance of rolling back the protections ordinary citizens have under the law. Protections which safeguard every one of us from rampant abuses of the powerful against the weak.

There is no such thing as "too free" or "too equal" under the law. We need to criticize our legislators and let them know that we are not fooled by the rhetoric of the current administration. We intend to fight like Thomas Paine to maintain our rights as free citizens of this great republic.

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