Essentially Contested America

It’s quite astonishing that President Obama’s mention of empathy as a virtue he seeks in Supreme Court Justices has caused such a commotion. The reason for the commotion is a commitment to a conventional, however preposterous, jurisprudential paradigm, namely, that law, or rules generally, must be understood simply in terms of the text they’re written in or if going beyond the written word is alright, one must go no further than a narrow extra-constitutional context of “original meanings.” According to this paradigm, the interpreter needs to understand language or an extraordinarily narrow context in which the original language was constructed and nothing more.  How rules might be affect individuals to whom the rules applies is simply out-of-bounds.  Why? Because such inquiries might require the interpreter to generate feelings for these individuals and when feelings are generated all Hell breaks loose.  We’re just not capable of devising principles, standards, and rules and at the same time permitting human emotions to enter into their application. Empathy? Whose empathy? Empathy toward whom? How deep should the empathy go? These are simply intractable problems.  The better approach is not to start down this road at all.

The problem, of course, is that it is only down this road that our humanity can be found. Rather than add empathy to the conventional jurisprudential model of emotion-less rules, we should start out with empathy and with other emotions and formulate the rules to express the import of these emotions. Reversing this order would require Justices to empathize with the parties to a law suit first, and try to determine which rules will best satisfy the real-world needs and feelings of these litigants and of society. This is superior to trying to avoid the feelings and humanity embedded in any important controversy that law is designed to resolve. In conclusion, empathy should be a permanent condition of judging. It should be expressed through the Constitution to apply meaningfully to the lives of Americans.

This entry was posted on Friday, May 8th, 2009 at 9:13 am and is filed under Constitutionalism, Judges, Jurisprudence, Law, Morality, U.S Supreme Court. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.