Constitutional Interpretation – Page 45 – Marquette University Law School Faculty Blog

Empathy and Catholic Legal Theory

Post author:Richard M. Esenberg
Post published:May 15, 2009
Post category:Constitutional Interpretation First Amendment Judges & Judicial Process Religion & Law U.S. Supreme Court

Over at Mirror of Justice, Rob Vischer of St. Thomas wonders about the role of empathy in Catholic legal theory. After referring to Orin Kerr’s summation of different responses to legal ambiguity, Rob asks:

Wasn’t Brown v. Board of Education driven by empathy, not just the weighing of legal merits? How about Meyer and Pierce? Is the recognition that “the child is not the mere creature of the state” as a rationale for a judicial decision driven solely by legal merit, or something else? And what about abortion? There are lots of Supreme Court decisions that reflect weak constitutional interpretation, but calls for the Court to overturn Roe v. Wade are not just about remedying bad interpretation, are they? Aren’t we also asking judges to empathize with the unborn in recognizing the need to overturn Roe?

Putting aside Roe (which I think is all about weak constitutional interpretation), Rob’s point goes to the idea that I was trying to explore yesterday about cabined empathy. It can be, to borrow Ed Fallone’s phrase again, useful in reasoning from undisputed (or at least a judge’s accepted) first principles. It isn’t that empathy creates an obligation of equal protection, but it does help us see the flaw in Justice Henry Billings Brown’s (who remembers that name?) assertion in Plessy that the badge of inferiority arising from Jim Crow exists “solely because the colored race chooses to put that construction upon it.”

Logic and Empathy

Post author:Richard M. Esenberg
Post published:May 13, 2009
Post category:Constitutional Interpretation

I might have commented on Ed Fallone’s post regarding the role of logic in Supreme Court decisions, but there is nothing in the post with which I disagree. But I do think that it raises two additional issues, one of which has been the subject of much recent popular conversation.

President Obama’s stated preference for judges with “empathy” has been a jumping-off point for a variety of conservative versus liberal debates on constitutional interpretation. Folks who tend to think like I do on these matters have roundly criticized the President for suggesting that judges ought to abandon the rule of law in favor of preferred results.

But the real debate, in my view, is not about whether empathy is a desirable quality in people and judges, but what role empathy ought to play in, to borrow from Ed, seeking “the logical consequence of undisputed first principles, the overall structure of the document, and prior interpretations.”

The Importance of Being Logical

Post author:Edward A. Fallone
Post published:May 12, 2009
Post category:Constitutional Interpretation

I went to see the Star Trek movie this past weekend with my twelve-year-old son, Andrew. He was the one dressed in full Klingon regalia (true story). The star of the movie is undoubtedly everyone’s favorite Vulcan, Mr. Spock. As you will recall, Spock is the character who always insists on behaving logically. Seeing the movie made me reflect on legal education and the importance of being logical.

Teaching Constitutional Law, it is easy to get wrapped up in ideological conflicts and to overlook the key role that logical syllogisms play in the construction of Supreme Court opinions. Certainly the students do not immediately grasp the connection between formal logic and Supreme Court decision-making. They begin the semester with the assumption that the members of the Court merely vote their ideologies. As the students assimilate the various interpretive theories for reading the text, such as textualism or intentionalism, they flirt with the possibility of deriving the meaning of the Constitution in an objective manner. However, the inconsistent manner in which the members of the Court employ these interpretive methods soon frustrates a fair proportion of the class. Some students begin to drift towards the view that the decisions of the Court are merely bald assertions of political power, while others begin to flirt with nihilism and the belief that the entire interpretive enterprise is arbitrary.

My personal view is that the United States Constitution is a political document, constructed via compromise between various interest groups and left intentionally ambiguous in several key respects.