Religion & Law

Many good answers to questions that properly arise in the face of the dilemma -- which I regard to be false -- of judges either *making it up* or *looking it up* can be found in Jeff Powell's Constitutional Conscience: The Moral Dimension of Judicial Decision (The University of Chicago Press, 2008).  The question animating the book is of a piece with the one Michael Perry and Rick Garnett have just been pursuing here (or not quite pursuing, pending something Michael Perry mentioned in Brooklyn): When is it a good idea, all things considered, for a judge to lie about what he or she is up to in reaching/justifying a decision?  Powell's claim is that virtues -- faith, integrity, candor, and humility -- should guide constitutional interpretation, because they (virtues)  are among the ends we as individuals and as a people should be seeking and living (including by engaging in constitutionalism at all).  I share Powell's judgment that the people who endow the governing authority with power have the right (because they have the duty) to expect of it/them virtuous conduct of office, which includes honoring the terms of the delegation of office they have received.  If they should come to understand that they cannot perform under that delegation without doing (serious) wrong, then they must not perform under it, unless of course one believes one can do a (proportional) wrong to achieve a "right."  Proportionalism, though, as a species of moral theory, is last season, not to mention vicious.