Justices must by necessity implicitly or explicitly consider questions of wisdom, justice, social harm and morality when deciding if a statute is unconstitutional. They should ensure that all these considerations are rooted in constitutional principles and constitutional questions. Society should not imagine these considerations are not present in judicial reasoning, nor should justices be ruled by them. The questions justices properly ask when deciding if a statute is unconstitutional are shaped by a moral vision of the proper role of the judiciary in representative democracy.
There are times when the correct constitutional reading of a challenged statute is explicit and uncontroversial. In these cases, it would be extremely harmful to the legitimacy of both the court and the constitution to rule in opposition to the uncontroversial reading. However, abundance of clarity leading to homogeneity of opinion is not the norm. In the majority of cases, justices must make choices about how to read the constitution, which precedents are most relevant, what principles to draw from those precedents, whether those precedents should be upheld or modified, when the arguments of dissenting opinions are more convincing than the majority, the natural meanings of words, and the parsing of punctuation. When faced with these questions about the application of the constitution, justices have further choices to make about how best to rule. One choice they might make is to apply an academic theory of interpretation. For example, a justice might ascribe to the original meaning school which holds that the text should be read by modern observes as it would have been by reasonable people when it was written. By contrast, a justice might instead ascribe t...
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...overnment is by “consent of the governed”. This principle is applied to the judicial system by limiting the power of judges, and ensuring as many decisions as possibly are made through the democratic process. In the legislature, the most directly democratic of social intuitions, laws are written. It should be in the legislature where the questions of morality, which guide the writing of laws, are publically debated. A system of justice which ignores this moral foundation may be more flexible to punish grossly immoral behavior in individual cases. This advantage in flexibility is not worth the cost in consistency, predictability, and moral legitimacy to the law as a whole.
Regina v. Instan (1893) 1 QB 450
United States. Senate. Confirmation Hearings on Federal Appointments, Committee on the