In Defense of Judicial Prudence
Posted: 10 Apr 2011
Date Written: April, 10 2011
There are interesting connections between 3 major philosophies of judicial review-majoritarianism, originalism, and perfectionism-and 3 cardinal virtues of classical Greek and Christian thought-temperance, fortitude, and justice.We show how and why advocates of majoritarianism-a philosophy that emphasizes deference to democratically elected branches-appeal to the virtue of temperance or restraint as the supreme judicial virtue; how and why advocates of originalism-a philosophy that emphasizes the obligation to remain faithful to the original meaning of the Constitution-appeal to the virtue of fortitude or courage as an essential virtue for judges to play their proper role as the guardians of the rule of law; and how and why advocates of perfectionism-a philosophy that emphasizes the obligation to read the Constitution in a way that makes it the best it can be-appeal to the virtue of justice as the judicial virtue necessary for judges to do the right thing when deciding hard cases before making the case that the fourth cardinal virtue-prudence-might provide the best guidance of all. Prudence is a virtue that is meant to provide us with guidance as we translate our moral obligations into action in the real world.In the American system, a prudent judge would be a judge who would appreciate that all the philosophies described above capture part of-but not the whole of-the truth about the nature of the American constitutional order and the place of judges within it.
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