modest judicial restraint

Modest Judicial RestraintAuthor(s): Theodore M. BendittSource: Law and Philosophy, Vol. 18, No. 3 (May, 1999), pp. 243-270Published by: SpringerStable URL: http://www.jstor.org/stable/3505243 .

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THEODORE M. BENDITT

MODEST JUDICIAL RESTRAINT

(Accepted June 24, 1999)

I. INTRODUCTION

It is perhaps surprising that after more than 200 years there is substantial disagreement in the United States about the nature of its government and the role of its Constitution. One of the profound differences concerns the relationship between self-government and the rights protected by the Constitution. According to one side, self- government is central. What the founders established, and what our government should be, is a system in which disputed issues are decided by popular decision-making processes, in particular, majority vote among elected representatives. There are limitations, expressed in the Constitution, on what the majority can do, but these are, and should be seen as, minimal and occasional. What this means to those on this side of the argument is that the language of the Constitution imposes, and should be seen as imposing, only minimal constraints. Strategies for reading the Constitution should therefore be adopted which are in accord with both the design and the proper nature of American government; such strategies will, of course, rule out expansive readings of the document.

I will call the foregoing the "self-govemment-first" camp and contrast it with the "liberty-first"' approach. This side believes that what is central, both in the design of our government and in what it should be, is the acknowledgement and protection of individual rights. The primary purpose of government, in this view, is to protect people's rights, and all agencies of government should be maximally bent toward this end.

1 This term should be taken to range widely over various views on the political spectrum, such as libertarianism and Ronald Dworkin's rights theory, that are alike in advocating vigorous judicial defense of rights as limitations on popular decision-making.

a Law and Philosophy 18: 243-270, 1999. 9 ! ? 1999 Kluwer Academic Publishers. Printed in the Netherlands.



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In some ways there is no real debate between self-government- first and liberty-first - the American political system embraces both self-government and rights, and everyone would agree that all genuine constitutional rights should be respected in the fashioning of laws and that within that framework popular decision-making processes are free to do whatever seems appropriate. What gives life to the debate is disagreement about the rights protected by the Constitution. Self-government-first argues either that a fair reading of the Constitution yields minimal limitations on legislative competence, or, more strongly, that the importance of self-government should lead us to read the abstract language of the Constitution as containing only minimal limitations on legislative competence. Liberty-first argues, to the contrary, that a fair reading of the Constitution yields a more muscular set of rights.

The difference between self-government-first and liberty-first about limitations on popular decision-making naturally spills over to their views about the role of the courts. Every member of government, legislator as well as judge, has a duty to uphold the Constitution, which includes the responsibility to ascertain what the Constitution requires. In the American political system, however, ultimate authority to determine what the Constitution embraces is assigned (except for the rare constitutional amendment) to the courts. Self-government-first and liberty-first, accordingly, have different ideas about how judges should determine what is embraced in the Constitution. That is, they have ideas not only about the substantive content of the Constitution, but about the techniques to be used in reading or interpreting the document.

The main argument of this paper is that there are reasons for judges not only to evaluate the substantive merit of legislation, but to advert to the fact that the place of elected legislatures in our scheme of government gives legislation a standing, an entitlement to consideration, that may go beyond judicial estimates of its intrinsic merit.

II. JUDICIAL REVIEW AND CONSTITUTIONAL INTERPRETATION

All constitutional actors, including legislators, are obligated to the Constitution and thus must interpret it. Which agency, then, should

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have the authority to make final decisions about what the Constitu- tion is to be taken to say or mean? Though history has assigned this prerogative to the courts, doubts have continually been raised about the legitimacy of this assignment on the ground that judicial review is undemocratic. The argument is that the essence, the very point, of democracy is that decisions are to be made by the majority (though sometimes a plurality) of citizens or their elected representatives. Disputed questions are to be submitted to the popular decision- making process, and the majority rules. To assign such issues to the courts, it is argued, is to ignore "the people," or the majority, and to substitute as decision-makers men and women who, though serious and able, are often not elected, if elected usually serve for very long terms, and are not even supposed to be responsive to public opinion. This is claimed to be counter to democracy, which is taken to be, at its heart, rule by the people as determined by majority voting.

This conception of democracy plays an important role in many views about how the Constitution is to be read. One the one hand, it is true that majoritarianism is clearly limited by provisions in the Bill of Rights and later amendments. But partisans of self- government demand that these provisions be read in such a way as to minimize the limitations. Two different strategies have been employed toward this end. One is to embrace a theory of meaning that has the desired result (sometimes the desired outcome is at least part of the reason for embracing the particular theory of meaning, other time perhaps not). A different tack is simply to approach the issue directly - not via a theory of meaning, but by taking a view of the proper roles of legislatures and courts. The former approach, including reading the Constitution in terms of plain meaning, original intent, or some versions of original understanding, has been much discussed in the literature and, though still maintained by numerous scholars and a large portion of the public, has, in my judgment, been properly exploded by Professor Dworkin and others; it will not be discussed here. The other approach, vari- ously called judicial restraint or judicial deference, holds that courts should deliberately defer to the popular decision-making branch of government except in limited, and perhaps even exceptional, circumstances. This view, held by Judge Learned Hand, Justice Robert Jackson, and others, will be discussed later on.

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III. PROFESSOR DWORKIN

Professor Dworkin's views are fairly well known by now,2 so a limited presentation of them should be adequate here. Dworkin's aim is to convince us that the Constitution is to be read in a certain way, that when the Constitution is read in this way we see that it protects a rather broad array of rights, that self-government-first rests on a mistaken idea of democracy, and that once this is seen the purported difficulties with judicial review disappear.

Central to Dworkin's approach is what he calls the moral reading of the Constitution, which is a multi-stage procedure. First, we note that some provisions of the Constitution (such as the equal protection and due process clauses) state or contain abstract moral principles.3 Next, we refine our understanding of the principles by seeing how the Constitutional provisions have been applied in the past. Then, for each principle, we ascertain its "true ground" and determine what novel cases it extends to. Finally, we unify the entire document into a set of consistent and coherent moral principles (this is the notion of law as integrity), adjusting our understanding of each so that they will fit together. For example, the goal of the Due Process Clause is to protect basic liberty, which includes protecting individual privacy. An application of that principle to procreation yields a principle of procreative autonomy, which says that "A state may not curtail liberty, in order to protect an intrinsic value ... when the decisions it forbids are matters of personal commitment on essentially religious issues ..." (FL, 101-2). This general principle is formulated by looking for a morally justifiable idea that can be seen as underlying existing decisions we are inclined to accept; it is then extended, via the principle of integrity, to other cases that fall

2 Four of Professor Dworkin's books are cited in the text; page references appear with the following abbreviations: FL is Freedom's Law (Cambridge, MA: Harvard University Press, 1996), LD is Life's Dominion (New York: Alfred A. Knopf, Inc., 1993), LE is Law's Empire (Cambridge, MA: Harvard University Press, 1986), and TRS is Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1978).

3 "According to the moral reading, these clauses must be understood in the way their language most naturally suggests; they refer to abstract moral principles and incorporate these by reference...." FL, 7. For a different view, see Antonin Scalia, A Matter of Interpretation (Princeton: Princeton University Press, 1997), pp. 3-47; Dworkin comments at pp. 115-27.

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under it. Dworkin maintains that the moral reading is not a proposal he is offering, but is in fact, though largely unacknowledged, the approach that has long been taken to constitutional interpretation.4

Even though the moral reading requires exercises in moral judgment, there are, Professor Dworkin holds (and I agree) right answers to moral/constitutional questions. The argument (or at least an argument) for there being right answers is that each of us who puts forward an answer thinks it better than the alternatives, which amounts to thinking it right; no one can think his position better than another and at the same time think an alternative equally good. This is so even though one might acknowledge that his or her own answer might not be correct, and might refrain, on grounds of humility or lack of confidence, from declaring it to be 'the right answer.' Nor is the notion defeated by the fact that, for some purposes, such as constructing public institutions, one may step outside the framework of her or his own beliefs and adopt, for that purpose, a point of view that recognizes that competing answers exist (one of which might be correct).5

The moral reading of the Constitution, together with there being right answers to constitutional issues, leads to a position quite contrary to the self-government-first approach, for it yields a wide array of constitutional limits on popular decision-making. From this perspective, therefore, to favor a greater role for popular decision- making is to recommend ignoring certain rights fairly embraced by the language of the Constitution. One thing this makes clear, according to Dworkin, is that judicial review is not the issue. The

4 "There is ... a striking mismatch between the role the moral reading actually plays in American constitutional life and its reputation" (FL, 3).

5 It is important, though, to recognize that it is a mistake to see the issue of judicial review as posing a choice between the right answer and a legislature's (possibly wrong) answer to a moral/constitutional issue. If this were the choice, one would always prefer the former, but that would not be an argument for judicial review, for review by the judiciary is not the equivalent of getting the right answer. The real choice is between a legislature's answer and a court's answer, and even if we think a court is more likely to get it right, perhaps because it is more likely to pay attention to principles, it is still the case that each individual judge comes to her or his own opinion and that the outcome rests ultimately on a vote. Courts are majoritarian institutions. See Jeremy Waldron, "Freeman's Defense of Judicial Review," Law and Philosophy, 13 (1994), pp. 27-41.

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moral reading of the Constitution is incumbent on all officials, legislators as well as judges.

The moral reading ... is not a theory about who must ask these questions, or about whose answer must be taken as authoritative.... What shall we say about the remaining questions, the institutional questions the moral reading does not reach? I see no alternative but to use a result-driven rather than a procedure- driven standard for deciding them. The best institutional structure is the one best calculated to produce the best answers to the essentially moral questions of what the democratic conditions actually are.... (FL, 34)

There are, Dworkin believes, extra-constitutional reasons for assigning this task to the courts, and in any event our history has so assigned it.

But what of the argument from democracy - the worry that assigning final authority to make these determinations to the courts is antimajoritarian and thus antidemocratic? Dworkin believes that this concern rests on an incorrect view of what democracy is; it is not, he holds, to be equated simply with popular decision-making, but rather with popular decision-making that meets certain conditions. Majority rule, he argues, has no moral standing in itself. To be sure, it is a way of getting things decided, but its value consists in a majority decision being a genuine expression of what the community thinks, and it cannot do this unless all are included, and on equal terms. This, then, is what constitutional limitations on popular decision-making are all about - the rights that must be recognized if we are all to be moral members of the community (FL, 21-6). In the case of abortion, for example, Dworkin believes that to force on a woman the community's opinion about the intrinsic value of human life is to fail to treat her with equal concern and respect (FL, 98-9); it fails to regard her as a full member in the moral community and thereby fails to fulfill the conditions that make democratic decisions justifiable and obligatory. Democracy is popular decision-making subject to certain conditions (which Dworkin calls the democratic conditions), and if those conditions are not met, "there can be no objection, in the name of democracy, to other procedures that protect and respect them better" (FL, 17; emphasis added).

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IV. IDENTIFYING CONSTITUTIONAL RIGHTS

While many constitutional issues involve the application of an acknowledged right to new circumstances, or at least to a new statute, on occasion the principle a court relies on has never been previously acknowledged, at least explicitly and officially. Critics see this as creating new rights; defenders see it as identifying rights that are in fact 'in' the Constitution. Even granting, however, that such rights are in the Constitution, the fact is that they have never before been acknowledged, explicitly and officially (though it will sometimes be claimed, perhaps reasonably, that there are past cases, now seen as precedents, that have implicitly been decided on the basis of such principles).

What are the bases for recognizing constitutional rights that have not previously been overtly acknowledged. Even though this should not be regarded as the creation of new rights, we need some idea about when it is appropriate to recognize previously unrecognized constitutional rights. One possibility is to say that we don't need any special bases - all rights that are in the Constitution are rights we are entitled to, and we are entitled to them as soon as we are satisfied that they are in the Constitution.

Let us consider first the application of an acknowledged right - the right to privacy - to abortion:

In the important 1965 case of Griswold v. Connecticut ... the Court decided that a state may not prohibit the sale of contraceptives to married persons, and in later cases it extended the ruling to unmarried persons as well.... Justice Blackmun [in Roe v. Wade] cannot be charged with erring in treating Griswold as a precedent he was obliged to respect. But once one accepts that case as good law, then it follows that women do have a constitutional right to privacy that in principle includes the decision not only whether to beget children but whether to bear them. Griswold and the other privacy decisions can be justified only on the

presumption that decisions affecting marriage and childbirth are so intimate and

personal that people must in principle be allowed to make these decisions for themselves, consulting their own preferences and convictions, rather than having society impose its collective decision on them. (LD, 106)

Professor Dworkin says "it follows" from Griswold's holding that the right of privacy applies to contraception that it also applies to abortion. In what way does it follow? If it can at all be said to follow, it does so as a matter of moral judgment, by seeing the ideas

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underlying the right of privacy as also embracing abortion. But it is possible, as a logical matter, to see the point of the right of privacy differently, or to see something about abortion that takes it out of the class of cases in which individual privacy is important, or to believe that privacy is not the dominant value in the abortion situation. Even if the determination that the right of privacy extends to abortion is morally correct, it still requires an independent exercise of moral judgment - no less than the initial determination that there is a constitutional right of privacy required moral judgment.

Justice Blackmun had a decision to make: either the right to privacy embraces abortions or it does not; one answer is right and the other is not. He had an opinion on the matter, but so did others, and the right answer does not certify itself. The institutional response (what the Supreme Court would hold, as opposed to what Justice Blackmun believed) was going to be decided by a vote in which the majority on the court would prevail. Should Justice Blackmun (and the other justices) have consulted only his own moral sense (including the way in which, as he saw it, certain moral principles undergird existing law)? This is, I believe, what Professor Dworkin recommends. The claim of those advocating judicial restraint, on the other hand, is that judges need to consult more than their own moral evaluations, however careful and well informed they are. This is, of course, an issue of continuing concern, going beyond the abortion decisions, for the moral reading of the Constitution makes it extraordinarily likely that there are still other rights buried in the abstract language of the great clauses of the document.

V. PRESUMPTION OF CONSTITUTIONALITY

Only some constitutional issues involve recognizing rights that have not previously been recognized, but all constitutional cases pose the question whether a right, whether newly or previously recognized, applies in the case at hand. In dealing with such issues our courts have steadfastly taken the position that legislation is presumed to be constitutional; the presumption is explained in the following excerpt from Parham v. Hughes, a 1979 Supreme Court decision on a challenge to a Georgia law:

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State laws are generally entitled to a presumption of validity against attack under the Equal Protection Clause.... Legislatures have wide discretion in passing laws that have the inevitable effect of treating some people differently from others, and legislative classifications are valid unless they bear no rational relationship to a permissible state objective.... Not all legislation, however, is entitled to the same presumption of validity. The presumption is not present when a State has enacted legislation whose purpose or effect is to create classes based upon racial criteria, since racial classifications, in a constitutional sense, are inherently "suspect." ... And the presumption of statutory validity may also be undermined when a State has enacted legislation creating classes based upon certain other immu- table human attributes.... In the absence of invidious discrimination, however, a court is not free under the aegis of the Equal Protection Clause to substitute its judgment for the will of the people of a State as expressed in the laws passed by their popularly elected legislatures. "The Constitution presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted." ... The threshold question, therefore, is whether the Georgia statute is invidiously discriminatory. If it is not, it is entitled to a presumption of validity and will be upheld "unless the varying treatment of different groups of persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the legislature's actions were irrational."6

Of course, the same applies to the acts of the federal legislature. The Court in Parham was presented two classifications alleged to be problematic. One, a distinction between legitimate and illegitimate children, was acknowledged to be "suspect," but the Court observed that the basis for regarding it as suspect was not present in the statute being challenged. The other, a distinction based on gender, was held to be a legitimate distinction in the case being considered. Having decided that no fundamental rights were at issue in the case, the Court went on to say that the statute was entitled to a presumption of constitutionality, meaning that it was to be held valid unless irrational.

The rationality test is, Professor Dworkin observes, "a very weak restriction" (LD, 104) - though it should be noted that its being weak is just another way of saying that there is a presumption that legislation is constitutional. But why is it weak? Why, given a court's concern to protect people's rights, does it presume, at least when it is satisfied that no fundamental rights are at risk, that a statute is

6 441 U.S. 347, 99 S.Ct. 1742, 1745-46 (1979).



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constitutional, rather than undertake its own examination? It is not, after all, as if there are no rights involved. Why should courts leave some rights to the mercies of legislatures, even though they might, based on their own moral readings, see matters differently? Putting the matter more strongly, when a court refuses to examine a statute on the basis of a presumption of constitutionality, it is, or at least may be, refusing to recognize a right that one of the parties has so that the legislature will have the final word on the matter. The only alternative to this would be for the court to decide all such cases, on the basis of its own moral reading - that is, to apply the principles it finds in the Constitution all the way down.

If we agree that courts do not and should not apply constitutional principles all the way down (this will be discussed further on), the question is where the line should be drawn between the sorts of cases in which a court should substitute its judgments for a legislature's, and those in which it should not. In answering this, however, it is important to be aware of another dimension of the matter, for we must notice that in determining what our rights are, the courts are at the same time determining the bounds of their own power, as well as that of the legislatures. When the courts find that a right not heretofore regarded as fundamental is indeed fundamental, or that a fundamental right is at risk in a type of situation not previously thought to put it at risk, they at the same time discover that the extent of their power is greater than it had been thought to be. Thus, in establishing, or in re-examining, the line between cases in which there are fundamental rights needing protection and cases in which there are not, it is very important to observe that below the cut-off, wherever it is, lies the prerogative of the popular decision-making bodies - the area in which the presumption of constitutionality applies. Accordingly, any decision as to the applicability of our fundamental rights is at the same time a decision as to the division of authority and power between courts and legislatures.

The notion that the courts are more likely to get right answers about fundamental rights is not an adequate response to the issue of which agency should decide questions about rights (i.e., about where to draw the line), for, if the courts are more likely to get right answers, this will be true no less for the application than for the identification of fundamental rights, so long as moral principles are

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in play. To answer the question, courts must take a view as to the proper role of courts vis-a-vis legislatures; they must take a view about the allocation of power in our legal/political system.

In drawing this line, courts can take one of two approaches. First, they can make decisions solely on the basis of considerations internal to the relevant clauses of the Constitution, perhaps by giving them a moral reading. Second, they can include in their thinking institutional considerations regarding the role of popular decision- making bodies in our governmental structure; that is, they can, in deciding what is fundamental within our institutional structure, entertain some combination (weighing) of moral considerations and political (institutional/structural) considerations. Professor Dworkin argues for the first approach (though, as we shall see, he makes some remarks leaning in a different direction). Those favoring some notion of judicial restraint, I believe, can be taken to favor something like the second approach. They believe that independent of the considerations that are involved in the moral reading, there are structural considerations that have weight in their own right and that need to be brought to bear (somehow) in deciding what the courts will hold our fundamental rights to be, and which must be weighed against judges' substantive views about rights. This in implicit in Justice Rehnquist's 1984 statement of the presumption of constitutionality: "the presumption of constitutionality which attaches to every Act of Congress is not merely a factor to be considered in evaluating success on the merits, but an equity to be considered in favor of applicants in balancing hardships."7

VI. THE ROLE OF COMPROMISE

Part of the rationale for the presumption of constitutionality is to be found in the political importance of compromise, including compromise of principle. Consider the case of Fullilove v. Klutznick, decided in 1980. In 1977 Congress passed the Public Works Employment Act which included a Minority Business Enterprise provision which said that at least 10% of federal funds granted for public works projects must be used to procure services or supplies

7 Walters v. National Association of Radiation Survivors, 466 U.S. 1323, 105 S.Ct. 11, 12(1984).

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from businesses owned by minorities. Congress passed the law after extensive hearings showing, to its satisfaction, that traditional procurement practices in the building trades perpetuated the effects of past discrimination. The Supreme Court held that this was a legitimate legislative goal and that the MBE provision was a legitimate means to achieving the objective. It seemed important to Chief Justice Burger, who wrote the opinion for the Court, that "Congress have necessary latitude to try new techniques" even though they "may press the outer limits of congressional authority." Chief Justice

Burger's opinion makes it clear that the Court is giving Congress a lot of leeway to deal with its problem:

Petitioners have mounted a facial challenge to a program developed by the politically responsive branches of Government. For its part, the Congress must proceed only with programs narrowly tailored to achieve its objectives, subject to continuing evaluation and reassessment; administration of the programs must be vigilant and flexible; and, when such a program comes under judicial review, courts must be satisfied that the legislative objectives and projected administration give reasonable assurance that the program will function within constitutional limitations.

In support of this judicial attitude the opinion quotes from Justice Robert Jackson:

The Supreme Court can maintain itself and succeed in its tasks only if the coun- sels of self-restraint urged most earnestly by members of the Court itself are humbly and faithfully heeded. After the forces of conservatism and liberalism, of radicalism and reaction, of emotion and of self-interest are all caught up in the legislative process and averaged and come to rest in some compromise measure such as the Missouri Compromise, the N.R.A., the A.A.A., a minimum wage law, or some other legislative policy, a decision striking it down closes an area of compromise in which conflicts have actually, if only temporarily, been composed. Each such decision takes away from our democratic federalism another of its defenses against domestic disorder and violence. The vice of judicial supremacy, as exerted for ninety years in the field of policy, has been its progressive closing of the avenues to peaceful and democratic conciliation of our social and economic conflicts.8

It is clear that the approach in Fullilove is responsive to the Court's view of both the political need for legislative compromise and its appreciation of the role and prerogatives of Congress is dealing

8 448 U.S. 448, 100 S.Ct. 2758,2781 (1980), quoting from Robert H. Jackson, The Struggle for Judicial Supremacy (New York: Vintage Books, 1941), p. 321.

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with the country's problems. The Court did not attempt to make its own finding about the present effects of past discrimination; it accepted that Congress had in good faith made such a finding (in later cases the Court refused to accept the bare claim, in the absence of an appropriate factfinding procedure, of the need to remediate the continuing effects of past discrimination). And it accepted the legislative determination, at least on a provisional and experimental basis, that racial and ethnic distinctions were a reasonable way to address the problems. It is perhaps easy to read the outcome of Fullilove simply as a liberal decision (though notice the votes cast by various justices) on preferential treatment. I am more inclined, though, to take it at its word - as a decision that confronts not only the substance of the Equal Protection Clause but the relative responsibilities of courts and Congress in our constitutional structure. One does not have to agree that the Court got it right to agree that the structural issue has something (indeed, much) to do with the outcome.9

VII. PRINCIPLES

If there is a case for a presumption of constitutionality in cases involving the application of recognized constitutional rights to new

9 In Wygant v. Jackson Board of Education, 476 U.S. 267 (1986) and in City of Richmond v. J. A. Croson Co., 488 U.S. 469 (1989) the Supreme Court held that Fullilove did not apply on the grounds that an unsupported legislative claim that a statute designed to favor minorities is remedial, is inadequate under the Equal Protection Clause, and that general societal discrimination, without some sort of showing of past discrimination in the area for which a 'remedial' statute is passed, is likewise inadequate. Furthermore, unlike the state-based statutes in those cases, Fullilove involved an act of Congress under a special grant of power under section 5 of the 14th Amendment. The Court in Croson says (pp. 500-1): "The factfinding process of legislative bodies is generally entitled to a presumption of regularity and deferential review by the judiciary.... But when a legislative body chooses to employ a suspect classification, it cannot rest upon a generalized assertion as to the classification's relevance to its goals.... A governmental actor cannot render race a legitimate proxy for a particular condition merely by declaring that the condition exists.... The history of racial classifications in this country suggests that blind judicial deference to legislative or executive pronouncements of neces- sity has no place in equal protection analysis." See also Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995).

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circumstances or new statutes, what about the more visible and often notorious cases in which courts recognize rights that have not previously been recognized, cases in which the role of principle is most in evidence?

What are principles? Sometimes we speak of 'general principles,' such as that one should keep promises, not harm others, be consid- erate, and help others. In a similar vein are some of the principles that Professor Dworkin discussed in his earlier writings - that no one should profit from his own wrongdoing, that manufacturers of potentially dangerous items have special obligations of care, and others. These 'general' principles identify considerations that are always relevant but not always decisive. They are considerations that argue for or against some course of action or outcome. They are weighed against one another, and their weights are variable, depending on the circumstances - in a given situation one principle might carry more weight than another, and in a different the reverse may be true, though there will be something else we can point to that explains the difference. Principles thus work in groups.

This is not the notion of principle that Dworkin advances in later writings, where it is found instead in the ideas of 'acting on principle,' 'having principles,' 'being principled,' having convictions, and standing for something. Principles as employed in these contexts are matters of pressing moral importance, not merely considerations having some degree of weight that are balanced against others. Weighing and balancing are still in the picture, but these considerations are very weighty and can't easily be over- ridden, and some might be so important that nothing can be taken to override them.

There are what I will call subjective and objective aspects of the foregoing notion of principle. If we suppose that there are objective truths in morality, then principles have whatever weight they (objectively) have and we can be correct or incorrect in our assessment of this. On the other hand, a person can treat a moral consideration as a principle - i.e., treat it as very important, perhaps so important that nothing will be taken to override it. A person who does this may be correct or incorrect in so regarding a moral consideration; if incorrect, she or he will be treating as a principle something that is not.

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There is also a situation-relative use of the idea of principle. Something might not be of substantial moral importance in itself, but might become important in a given set of circumstances, and a person who insists on it, especially when it might be safer not to do so, is often said to be acting on principle or standing for some principle. For example, a person who takes an unpopular stand on an issue (say, in a faculty meeting or some other public/political setting) might be said to be standing on principle, even if what is at stake is not at the level of urgency of life and death, liberty, and basic human dignity.

Professor Dworkin's philosophy of law employs the objective (but non-situation-relative) notion of principle. He finds the idea that there are moral principles of this sort embedded in the Consti- tution very exciting, saying that their scope is "breathtaking" (FL, 73) and that "the American ideal of government not only under law but under principle as well is the most important contribution our history has given to political theory" (FL, 6). It is important to observe that the principles Dworkin calls upon have to do with individual rights: "Arguments of principle attempt to justify a political decision that benefits some person or group by showing that the person or group has a right to the benefit" (TRS, 294). (Actually, it is unclear whether Dworkin thinks that all principles involve rights, or only a subclass of principles that might be called fundamental; it is likewise unclear whether the claim that arguments of principle involve rights is intended to be stipulative.) Moral principles of this sort hardly seem to admit of compromise. Is there, though, a place for compromise? And if so, is there a place for a presumption of constitutionality when courts consider challenges to laws reflecting such compromises?

VIII. COMPROMISES OF PRINCIPLES

Many legislative results can only be seen as contests among different interests, where principle is hard to find. Professor Dworkin expresses doubt about the role of principle in the legislative arena, saying that "when political controversies are decided by legislatures or other elected officials, the decision is likely to be guided by what most people want" (FL, 344), rather than on the basis of principle.

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But there are many publicly discussed issues, such as public support for private education, abortion, preferential treatment, and the death penalty, in which matters of principle seem quite prominent. It is hard to see the abortion issue as being decided by what people want as opposed to what they think right; it is hard to see what individual interests would be promoted by one outcome or another. It is easy, though, to see the push and shove of controversy as reflecting people's principles, and to regard the public and the legislative debates as involving only, or at least primarily, principles. Neverthe- less, legislative results on such matters might involve compromise, each side getting something that its principles favor. If this is the case, then, I suggest, there is an argument for a presumption of constitutionality.

Suppose, for argument's sake, that the members of a court are inclined to accept, on principle, the idea that anti-abortion statutes are constitutional (contrary to what Professor Dworkin believes the Constitution requires), and that their own basis for thinking them right makes no exception for rape and incest. Suppose a statute that comes to them makes exceptions for rape and incest and that in the legislature there were thorough arguments of principle on all sides of the issue, both as to whether abortion should be legal at all and whether it should be legal in cases involving rape or incest. Suppose, finally, that a bill comes forward that compromises some of the issues,10 and it passes. What is the proper course for judges who themselves are inclined to believe that the exceptions are incon-

10 "...it would be a mistake to suppose that persons who compromise with one another ... necessarily compromise their moral integrity. To see why, it is important to distinguish: (1) what one judges ought to be done about a matter that happens to be in dispute, leaving aside any consideration of the fact that there is a dispute; (2) what one judges ought to be done, all things considered. When an issue is in dispute there is more to be considered than the issue itself - for example ... the intrinsic good of participating in a process in which each side must hear the other side out and try to see matters from the other's point of view, the extent to which the matter does admit reasonable differences of opinion, the significance of a settlement in which each party feels assured of the other's respect for its own seriousness and sincerity in the matter.... Taking all of this into account, a person of goodwill might well decide that compromise is the wisest course." Arthur Kuflick, "Morality and Compromise," in J. Roland Pennock and John W. Chapman (eds.), Compromise in Ethics, Law, and Politics (New York: New York University Press, 1979), p. 51.

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sistent, in principle, with the principles they find persuasive against abortion? (It is irrelevant that there might be principles that justify both the general anti-abortion statute and the exceptions; the point is that the judges considering the case don't believe there are such principles.) Professor Dworkin, as I understand him, believes the responsibility of judges is to act on what they themselves think are the controlling moral/constitutional principles, regardless of what any in the legislature think. But why, given the history of popular deliberations on the issue, should the judges not at least think about whether the legislative compromise ought to be respected, even if they disagree with it? That does not preclude them, if they think it important enough, from rejecting the compromise.

In Law's Empire Professor Dworkin argues against compromise, specifically, a form of compromise that yields what he calls "checkerboard" laws. A difference of opinion about the justice of strict liability laws might be accommodated by a law imposing strict liability on the manufacturers of automobiles but not washing machines. Such a compromise, even though each side might favor it as yielding more justice (or less injustice) than one of the alternatives (though less than another), is nevertheless unacceptable because it "treat[s] people differently when no principle can justify the distinction" (LE, 180). The injustice in this is that "it affirms for some people a principle it denies to others" (LE, 183); such an inconsistency of principle constitutes a lack of integrity. This defect does not exist, though, where a distinction reflects a prioritization of principles. "Would you not think a statute prohibiting abortion except in the case of rape distinctly better than a statute prohibiting abortion except to women born in one specified decade in each century? ... You see the first of these statutes as a solution that gives effect to two recognizable principles of justice, ordered in a certain way, even though you reject one of the principles" (LE, 183). Statutes reflecting prioritization of principle do not suffer from the defect of incoherence of principle.

So Professor Dworkin is not opposed, on grounds of principle, to suitable compromises, namely, those reflecting a prioritization of principles. It would seem, then, that he is not opposed, on grounds of principle, to certain legislative compromises. The issue, then, is how judges who do not agree with the prioritization should respond to

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such a legislative compromise. I suggest that, in cases of this sort, it would be appropriate for courts to give some weight to the very fact that the law being challenged reflects a compromise of principles that has been reached by a legislature. In a suggestive remark (in a footnote) Professor Dworkin entertains the thought that checkerboard solutions "can be justified, if at all, only on the grounds of a fair allocation of political power between different moral parties" (LE, 435). Though Professor Dworkin does not commit himself in this remark to the idea that checkerboard solutions might actually be justifiable, the notion of the allocation of political power as a possible basis for justification is worth paying attention to. I propose borrowing the suggestion that, not checkerboard laws, but compromises of principle reached by appropriate moral parties (legislatures) have a claim on other moral parties (courts) that have to deal with them in some way. Specifically, I think it appropriate that courts presume the constitutionality of such laws, understanding that their own role demands that they overturn them if they are not merely different from what the judges might have decided on their own, but are beyond acceptability.

These thoughts can be extended, finally, to cases in which, rather than a prioritization of controversial principles, there is instead a debate over principles and the resulting statute reflects only one of the competing principles. Consider the case of Pierce v. Society of Sisters,ll concerning a 1922 Oregon law requiring all children to attend public schools, in which the Supreme Court held that one of our essential liberties, protected by the Due Process Clause of the 14th Amendment, is the right to control the education of our children. The issue presented in the case is certainly one of principle; whatever interests are involved are clearly not as powerful as the principles that motivate people on this question, and even if they are, they are likely to be strongest on the part of those favoring private education. (Of course, there are the interests of the private schools themselves, which stand to lose students and very likely go out of business; it is of no little interest that the case was brought by such a school, which was allowed to make its case on the basis of the (purported) rights of the students who attended the school.) Surely those who voted for the law (there was a refer-

11 268 U.S. 510(1925).

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endum) were aware that many people held the view that they have the right to control the education of their own children. And surely those favoring private education were aware that many people held views such as that society would be better if education were the same for all, or that private education promotes class divisions, or unacceptable inequality, or whatever. And surely there was a debate, probably robust (since there was a referendum), on the issue. In light of this, what is the proper course for judges? Should they, as Professor Dworkin maintains, act on what they themselves think are the controlling moral/constitutional principles, regardless of what the majority who voted for the law think? But, once again, why, given the history of popular deliberations about the issue, should the judges not at least think about whether the majority view about the principles ought to be respected, even if the judges disagree with it? Once again, that does not preclude them, if they think it important enough, from deciding against the majority. Respecting a presumption of constitutionality is not a counsel of complete deference to the legislative branch. What it does is raise the bar; it tells judges that it is only in especially egregious cases that they ought to substitute their own idea of the determinative principles for those adopted by other constitutionally recognized agencies.

IX. REASONS FOR PRESUMPTION OF CONSTITUTIONALITY

(a) The value of compromise. Justice Jackson, referred to earlier, speaks of democracy as a process of "composing oppositions." "The measure of success of a democratic system," he observes, "is found in the degree to which its elections really reflect rising discontent before it becomes unmanageable, by which government responds to it with timely redress.... It must be remembered that our democratic system can succeed in composing oppositions only if the effort is made while the separation is not extreme."12 Indeed, Jackson maintains, historically the Supreme Court does not have a very good record when it comes to overruling the "popular branches," in the sense that "In no major conflict with the representative branches on any question of social or economic policy has time vindicated the

12 Supra n. 6, p. 316.

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Court."'3 Many would dispute this remark with respect to a number of the Supreme Court's decisions since Jackson wrote, but that does not upset the point that courts do well to advert to the composing of oppositions that are frequently presented in contested legislation, and to regard it as a factor to be considered in deciding on the constitutionality of a law.

Against these cautions Professor Dworkin offers the benefits of robust public arguments of principle. In reply to Judge Learned Hand's (no doubt extreme) idea of judicial restraint, which rests on the good of public participation in the important decisions that its legislatures make, Professor Dworkin maintains that much better debate is associated with court decisions, which are decisions of principle, rather than legislative decisions, in which issues of principle are clouded by single-issue pressure groups and political intimidation of legislators. Important court decisions are typically followed (note: not preceded, but followed, after, as some would see it, the damage is done) by robust debate, which may lead to such decisions being "elaborated, expanded, contracted, or even reversed, by future decisions ..." (FL, 345).

But it is doubtful that the robust debate of principles is such a good thing that it supports Dworkin's view not only of the Consti- tution but also of the role of the courts. Confronting principles notoriously raises the stakes in a matter of controversy; it has the tendency to harden positions and make people intractable. In their book The Abuse of Casuistry Stephen Toulmin and Albert Jonsen report on their participation in a national conference on biomed- ical research. The eleven commissioners had substantially different backgrounds, yet they were readily able to come to agreement on many specific proposals. "Serious differences of opinion began to appear only when individual commissioners went beyond the stage of formulating practical proposals and explained their individual reasons for participating in the collective recommendations."

Members of the commission were largely in agreement about their specific practical recommendations; they agreed what it was they agreed about; but the only thing they could not agree on was why they agreed about it. So long as the debate stayed on the level of particular judgments, the eleven commissioners saw things in much the same way. The moment it soared to the level of "principles," they

13 Ibid., p. x.

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went their separate ways. Instead of securely established universal principles, in which they had unqualified confidence, giving them intellectual grounding for

particular judgments about specific kinds of cases, it was the other way around.14

In a related vein Robert Paul Wolff once remarked that

It is much easier to accept a compromise between competing interests ... than between opposed principles which purport to be objectively valid. The genius of American politics is its ability to treat even matters of principle as though they are conflicts of interest. (It has been remarked that the genius of French politics is its ability to treat even conflicts of interest as matters of principle.)15

Professor Dworkin, by contrast, applauds confrontation of principle in spite of its problematics and notes with approval that the French and American orientations have been reversed:

... in spite of all the violence ... the public discussion of [abortion] in America has involved many more people, and has been more successful in identifying the complex variety of moral and ethical issues involved, than in other countries where a political compromise was engineered. In France, for example, this was done more in the interest of avoiding intense public discussion than of reflecting it.... (FL, 345)

(b) Allocation of power There is nothing in the history of the establishment of our governmental structure, or in the public under-

standing of that structure, either in the past or at present, suggesting that our legislatures - and by extension the public - do not have a

legitimate role to play where fundamental principles are concerned. Professor Dworkin concedes this in saying that the moral reading applies to legislatures as well as courts and that the question of which entity establishes authoritatively the meaning of the Consti- tution is determined by considerations extrinsic to it. Accordingly, to regard legislative determinations of principle, and a fortiori the

public debate that frequently accompanies them, as not entitled to any special weight is to fail to treat the legislature as a co-

equal branch of government. Our courts regularly express the view that they and the legislature are co-equal branches of government,

14 Albert R. Jonsen and Stephen Toulmin, The Abuse of Casuistry (Berkeley and Los Angeles: University of California Press, 1988), p. 18.

15 Robert Paul Wolff, "Beyond Tolerance", in Robert Paul Wolff, Barrington Moore, Jr., and Herbert Marcuse (eds.), A Critique of Pure Tolerance (Boston: Beacon Press, 1965), p. 21.

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which they take to mean that legislative determinations are to be respected and not overturned lightly. Even if this pronouncement sometimes appears to be honored only in the breach, it expresses a widely understood view of the allocation of power and responsibility between courts and legislature.

As noted earlier, Professor Dworkin's conception of principle is not completely clear - specifically, it is not clear whether all moral principles involve rights. If they do not, and if some considerations of public welfare (broadly understood) rise to such a level of importance that we might want to say they underwrite moral principles, then it is particularly important to pay attention to legislative determinations of principle, because legislatures are the institutions specifically charged with protecting and promoting welfare. Consider the dictum that the right of free speech does not entitle one to shout fire in a crowded theater. Is public safety merely a goal (as if we could choose not to protect it)? Or do we recognize as a principle that public safety is to be protected? The latter clearly puts legislatures in the business of dealing with issues of principle and thereby obligates courts to give weight to legislative determinations of principle.

The presumption of constitutionality is not a counsel of slavish adherence or of legislative supremacy. Courts have the power and the obligation to overrule where, in their opinion, a legislature's resolution of issues of principle is intolerable. No opinion is expressed here as to what "intolerable" should mean, or, in fact, whether that is a suitable term. The point is that the existence of a legislative determination of principle not only does, but should publicly be recognized to, raise the bar to some degree - a degree to be determined by courts giving due respect to the presumption of constitutionality.

(c) The appropriateness of humility. Earlier it was observed that it is a mistake to assume that review by the judiciary is the equivalent of protection of individual rights, for judges are simply people who may or may not be more able than legislators, governors, and presidents, and after the judges consider an issue they make their decisions by a simple vote. They are, on the whole, more likely to get the right results, because they have more experience considering

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matters of principle, have their eyes on a larger picture (that is, other legal decisions and principles as applied in other cases), and are more removed from the pressures of political decision making. One the other hand, in many cases in which principles play a prominent role judicial determination is preceded by debate among a large number of people, many of whom are intelligent, serious, and legally informed. These considerations, when they actually occur, should lead anyone to give some credit to the outcome of such deliberations and to be quite sure of his or her ground before insisting on a different outcome.

(d) Integrity and community. Professor Dworkin holds that the proper conception of democracy has to do with the conditions under which we can be said to govern ourselves, to be self-legislating, and thereby come under a moral obligation to comply with laws. This occurs when we are constituted as a single community under a coherent set of laws and principles that reflect our implicit ideals, for only in such circumstances do we undertake a commitment to each person to treat him or her the same as others, which we do by applying the same principles to everyone: "...a general commitment to integrity expresses a concern by each for all that is sufficiently special, pervasive, and egalitarian to ground communal obligations according to standards for communal obligation we elsewhere accept" (LE, 216).

Critics have observed that, in Dworkin's philosophy, the integrity that is achieved (or perhaps only sought) is not necessarily a shared set of principles. In response to Dworkin's "Law's empire ... is an interpretive, self-reflective attitude.... It is a protestant attitude that makes each citizen responsible for imagining what his society's public commitments to principle are" (LE, 413), Dennis Patterson responds that "Ultimately the act of putting the practice 'in the best light' is something individuals (including judges) do. Interpretation is not intersubjective for Dworkin, but deeply personal."16 In a similar vein Jeremy Waldron observes that "The integrity of a substantive theory of social policy or social practice is the integrity of a single mind: but we are faced with many

16 Dennis Patterson, Law and Truth (New York: Oxford University Press, 1996), p. 83, n. 75.

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minds and many theories on almost every issue."17 The point is that community has much to do with the principles people consciously accept; someone's idea of the web of principles we are morally committed to by those we consciously accept may be a possible basis for community, but as yet does not underwrite an actual one.

It is indeed important, as Professor Dworkin intimates, that we can look each other, even strangers, in the face and acknowledge that we owe them certain things as a matter of justice or fairness or procedural due process and that we are committed to treating all in precisely the same way. It may be that our mutual commitment to this can provide an explanation of our obligations to obey the law. But treating everyone the same in this sense can occur only if integrity is in fact achieved and everyone sees it as having been achieved. For if it is not achieved, then people are being treated differently, and in any event if people do not believe it is achieved, then they will not accept that they are part of a community that gives rise to political obligations. Without widespread acceptance of principles it is difficult to speak of a community of principle.

X. LEGISLATION AND THE DIMENSION OF FIT

An interpretation, whether of a novel or some part of the law, according to Professor Dworkin, has two dimensions. The first, the dimension of fit, calls upon the interpreter to identify a set of ideas (a story line) that draws together as much as possible of the materials to be interpreted into a consistent and coherent whole. The interpretation must "flow throughout the text" and explain its major elements, though it may fail to explain everything, for irresolvable inconsistencies may exist. If two or more interpretations fit equally well, the interpreter selects the one that makes the novel or the law the best it can be (shows it in its best light), which requires aesthetic or moral judgment on the interpreter's part. In the law judges interpret by identifying moral principles underlying statutes, past decisions, and the like and decide new cases by applying these principles. In this way law has integrity - it speaks with one voice and decisions are based on principle. Professor Dworkin is quite

17 Waldron, op. cit., p. 34.

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clear that there are real limitations to the principles judges may find in the Constitution. For example, however attractive a judge finds the notion of economic equality, she or he cannot interpret the equal protection clause to make it a constitutional requirement "because that interpretation simply does not fit American history or practice, or the rest of the Constitution" (FL, 11; see also LE 381-2). There is thus a basis for judicial restraint deriving in part from the history of legislation.

The requirement of fit yields yet other grounds for judicial attention to legislation. In statutory interpretation the judge must find a justification of the statute that "fits and flows through" it and other legislation; "this means he must ask himself which combination of which principles and policies, with which assignments of relative importance when these compete, provides the best case for what the plain words of the statute plainly require" (LE, 338). But this search comprehends more than just the words of the statute. Statutes not involving constitutional issues, Professor Dworkin maintains, are particularly suitable for decision by popular majority; in such cases, therefore, it is appropriate to be sensitive to general public opinion in seeking the best interpretation. This in turn points toward a role for the legislature, whose convictions must be taken to reflect public opinion, and the case is stronger yet when a series of statutes, perhaps over time, demonstrates settled public opinion on a topic or on a related set of issues.

Public opinion has a role too, Dworkin suggests, in constitutional cases, for his fictional Justice Hercules, in deciding Brown v. Board of Education, takes into account ethical attitudes that are widespread in the community - "America's growing sense that racial segregation was wrong in principle, because it was incompatible with decency to treat one race as inherently inferior to another..." (LE, 388). The attitude evidenced in earlier interpretations of the Fourteenth Amendment, in contrast, "is no longer an act of the nation personified declaring some contemporary public purpose" to which the court must refer. As with statutory interpretation, then, the judicial obligation to consider community attitudes as part of the dimension of fit argues for giving special weight to statutes, particularly contemporary statutes. Courts are to treat a statute as entitled

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to a presumption that it fits, that the moral principles found to make the law an integrated whole will include the statute in question.

Though Dworkin's approach to judicial decision-making is certainly more flexible than a rigid rule of precedent or a theory of speaker's meaning or original intent, there is nevertheless the risk that judges might fail to see changes in community values and might believe, when they should not, that existing principles continue to provide the best fit. Hercules would not do this, but it is not at all unlikely that actual judges would. Further, we should bear in mind that law as integrity has the tendency to be self-reinforcing in that each decision in line with a favored principle provides new grounds for future decisions based on the same principle. Other constitutionally empowered officials seeking to alter judicially determined directions are at a considerable disadvantage. A legislature wishing to move in a different direction is limited to a single piece of legislation at a time, which to the courts may be no more than a data point that is not part of the fit supporting a well-reinforced interpretation.

These concerns too support the notion that, even in constitutional cases, legislative history and practice, as probably reflecting community attitudes, is entitled to a presumption in favor of fit. Sometimes, though not always, public opinion is ahead of the courts and their views of the threads binding us together.18

18 The issues raised in this section are very much at stake in an important dispute about the salience, in contemporary circumstances, of rights against searches in the absence of probable cause, anti-loitering ordinances, and curfews. The City of Chicago, with the strong support of African-American Aldermen, passed a "gang-loitering" ordinance in 1992 designed to prevent known gang members from congregating on the streets, and some time later the Chicago Housing Authority, with the approval of a sizeable majority of the residents of public housing in Chicago, passed a building search ordinance authorizing police to search apartments for drugs, without consent and whether or not there was probable cause. Both of these laws were declared unconstitutional by lower courts. Those favoring the laws argue that the community (in this case a sub- community) has the prerogative to determine which rights it continues to think important in dangerous circumstances. See Meares, Tracey L. and Kahan, Dan M., "The Coming Crisis of Criminal Procedure," Georgetown Law Journal, 86

(1998), pp. 1153-1184:

The occasion for the current doctrine's [i.e., doctrines of criminal procedure used to evaluate discretionary community policing] demise, we predict, will be the political revolution that's now remaking urban law enforcement.... [C]ities

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XI. SUMMARY

The argument of this article is that, in negotiating the relationship between self-government and constitutional rights, judges have reasons not only to evaluate the substantive constitutional case for legislation, but to recognize that legislation is entitled to a consideration that may go beyond its intrinsic merit. At all levels of constitutional decision-making (the application of recognized principles to new cases or the acknowledgement of principles not previously recognized) judges have a choice to make. The choice is between looking strictly at the merits (finding the most suitable principle that fits best with other legal materials), and recognizing that other constitutional officers have taken a position on the issue that may or may not coincide with the position the judge would take.

throughout the nation are rediscovering curfews, anti-loitering laws, order- maintenance policing, and related law-enforcement strategies. On the surface, these community policing techniques bear a striking resemblance to the ones that communities used to reinforce the exclusion of minorities from the Nation's political life before the 1960's. But there is a critical difference in political context. Far from being the targets of these new law-enforcement strategies, inner- city minority residents are now their primary sponsors. Flexing their newfound political muscle, these citizens are demanding effective law enforcement. They support discretionary community policing both because they believe this strategy will work ... and because they see this form of law-enforcement as morally superior....

Viewed through the lens of existing constitutional doctrine, however, the new

community policing appears indistinguishable from the old. In numerous cases, courts have invalidated new community policing strategies on the ground that they involve excessive police discretion. Although the civil liberties groups that have brought these cases purport to be enforcing the rights of inner-city minorities to be free from police harassment, their suits are frequently opposed by minority residents themselves. A body of doctrine designed to assure racial equality in law enforcement has now become an impediment to minority communities' own efforts to liberate themselves from rampant crime.... This is a contradiction too fundamental to be endured for long. Indeed, the first signs of doctrinal collapse have already appeared. At the same time that many courts have been striking down new community policing techniques, others have been upholding them notwith- standing the evident tension between their holdings and the existing doctrine. The case law is characterized by disarray and confusion. (pp. 1153-4)

See also Meares and Kahan, "The Wages of Antiquated Procedural Thinking: A Critique of Chicago v. Morales," The University of Chicago Legal Forum (1998) and "When Rights are Wrong" (with responses), Boston Review, 24(2) (1998).

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It is not satisfactory to hold that legislation is entitled to consideration going beyond its intrinsic merit in cases involving only policy but not rights. This has never been the theory or the practice of our courts - the presumption of constitutionality applies to all cases and implies that at some point where courts could make the decision, it is to be left to the legislature. I have argued that there are reasons for courts to exercise a modest degree of restraint in all cases where legislation, especially recently passed legislation, is at issue. The importance of compromise, the need to allocate power among branches of government, and the fact that judges, whatever their ultimate responsibilities, are not necessarily more insightful than other constitutional officers, point in the direction of a degree of restraint. And the salience of community attitudes in the search for principles that fit argues for paying attention to acts of a legislature as the best evidence of those attitudes. None of this detracts, however, from the idea that if the judges think both that the legislature got it wrong and that the matter is important enough, they have the responsibility to act accordingly.19

University of Alabama at Birmingham

19 I would like to thank Professor James Rachels and an anonymous reader for Law and Philosophy for helpful comments.

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modest judicial restraint

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