In his provocative Opinion piece Our Fill-in-the-Blank Constitution in the April 13 New York Times, Geoffrey Stone examines this question and more. He emphasizes that contitutional law is not a mechanical exercise in just applying the law, a fact that needs always to be considered in the selection and evaluation of judges and justices.. Here are two excerpts from the article:
“AS the Senate awaits the nomination of a new Supreme Court justice, a frank discussion is needed on the proper role of judges in our constitutional system. For 30 years, conservative commentators have persuaded the public that conservative judges apply the law, whereas liberal judges make up the law….”
“So, how should judges interpret the Constitution? To answer that question, we need to consider why we give courts the power of judicial review – the power to hold laws unconstitutional – in the first place. Although the framers thought democracy to be the best system of government, they recognized that it was imperfect. One flaw that troubled them was the risk that prejudice or intolerance on the part of the majority might threaten the liberties of a minority. As James Madison observed, ( http://www.constitution.org/jm/17881017_bor.htm ) in a democratic society “the real power lies in the majority of the community, and the invasion of private rights is chiefly to be apprehended … from acts in which the government is the mere instrument of the major number of the constituents.” It was therefore essential, Madison concluded, for judges, whose life tenure insulates them from the demands of the majority, to serve as the guardians of our liberties and as “an impenetrable bulwark” ( http://press-pubs.uchicago.edu/founders/documents/v1ch14s50.html ) against every encroachment upon our most cherished freedoms.”
To see the complete article go to:
Those interested in this topic may also want to see Suzannah Linton’s paper, The Role of Judges in Dealing With the Legacies of the Past, published on the Social Science Research Network.. This author discusses the role of judges from an international, human rights perspective.
This paper examines the role that judges can play in dealing with legacies of the past in countries emerging from armed conflict, repression and situations where serious human rights violations have occurred. Criminal justice has, in some quarters, come to be denigrated for being “retributive”, and therefore unhelpful in the process of taking a country forward after the dust has settled. The author sees a serious imbalance in the sidelining of the rule of law in the current paradigm. Without wishing to romanticize the role of law or the courts, this work seeks to rebalance the discussion by bringing to light the considerable role for judges in the recalibration of a society. The author does not suggest a legal approach on its own will suffice; in fact, a purely legalistic approach to dealing with such situations is wholly inadequate. But as the international and comparative research conducted for this paper demonstrates, there is a critical role for judges in times of political change and this needs to be better utilized in order to maximize the chances of successful social change and structural reform.