"But that does not mean that the justices are free to interpret the abstract clauses of the Constitution to match their own political convictions, whatever these are. It is essential to the rule of law that they accept the constraints as well as the responsibilities of the jurisprudence of principle. They must rely only on principles that they honestly think provide a persuasive justification for our actual constitutional traditions. They must set out the principles on which they rely in their opinions transparently; and they must apply those principles consistently across all the cases that come before them. They must not invent arbitrary exceptions when these principles yield results they find uncongenial. Unless justices accept those constraints, they are only unelected politicians."
From "The Court's Embarrassingly Bad Decisions"
NYR, MAY 26, 2011
Ronald Dworkin
2 comments:
I think this is backwards: "They must rely only on principles that they honestly think provide a persuasive justification for our actual constitutional traditions."
I would argue, They must rely only on principles that they honestly think are persuasively justified by our actual constitutional traditions.
And I would argue that it is hysterically funny to see "progressives" blather on about the make-up of the Supreme Court after the jackass years of liberal dominance. Only progressives could suddenly want political leanings to be reined in after their own Chief Justice McLachlin said:
"The rule of law requires judges to uphold unwritten constitutional norms, even in the face of clearly enacted laws or hostile public opinion"
And yet isn't a more literal interpretation that respects parliament and the people who consent to be governed exactly what us conservatives have wanted? When judges think that their unwritten law is greater than the desires of the people who must live under those laws we get the types of courts that the Liberals under Trudeau and Chretien, and the Mulroney faux-conservatives created.
Frankly, I believe it is stunningly arrogant for our lawyers and judges to believe that they are somehow immune to partisan thinking when they practice. I much prefer the US model where no one plays to such deceits.
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