Richard�s last moves us in several interesting directions. He�s given us his policy preferences for the area of religion, and, as usual, he is common sense personified, a master at stating simple rules for a complex world, as the title of one of his inspired books had it. He also made clear that labeling him a libertarian is imprecise, since he�s as concerned with preserving a system in which alternative policies can be explored as he is with preserving the rights of individuals, at least if I read him correctly. The essence of Richard�s jurisprudence, as revealed, I think, in his last posting, might be more pragmatic than it is libertarian, and, I�m starting to realize, he may be much closer to his pragmatic colleague Richard Posner than I had thought (not that there�s anything wrong with that).
But ought pragmatism to be the core value of Constitutional jurisprudence? There is no doubt that Sandra Day O�Connor must have thought so, and thus the question has relevance for John Roberts� confirmation. O�Connor appeared to care little for law, or at least clear legal rules, and her balancing tests, her �entanglement� test, her �undue burden� test were, as Justice Scalia frequently reminded us, thinly disguised vehicles for the exercise of complete judicial discretion, or, if you like, licenses to ignore history, tradition, and previous precedent in order to implement preferred policies.
Is it na�ve to hope that Roberts could do better? We currently deify Holmes as the patron saint of judicial pragmatism, and legal realism (which is but another name for judicial pragmatism) is the dominant jurisprudence in the academy. The assumption seems to be that Constitutional and legal interpretation will inevitably change as society evolves and as new economic, political, social, or intellectual issues arise. This is the basis of the �living constitution� school of jurisprudence, openly exemplified by Justices Brennan and Warren, if not Justices Stevens, Breyer, Ginsburg, and Kennedy, as well as Justice O�Connor, who tend to practice it sub silentio, only occasionally making clear what they are up to, as Justice Kennedy did in the Lawrence case and the case involving the death penalty for minors.
But what if an evolutionary Constitution is not a good idea; what if there are timeless truths embedded in the original document; what if the original conception of federalism, of the states as primary regulators, and the original conception of separation of powers (whereby, as Montesquieu urged, judges were forbidden to legislate) still make as much sense as they did in 1789? Would it be appropriate for a Justice Roberts, who, mirabile dictu, actually seems to believe in the idea of the rule of law and that ours is presumably a government of laws not men, to forswear pragmatism and seek to return us closer to the original understanding? Might this even mean that the incorporation doctrine itself (trenching as it does on federalism) ought to be reexamined? Richard seems to have suggested the contrary, but Richard is also (he can indicate whether it is correctly or incorrectly) identified as a proponent of the �Constitution in Exile� school, a group that presumably believes (correctly, I think) that Constitutional jurisprudence went horribly wrong in recent decades, and is in need of serious revision, to, as it were, recapture the Constitution. That, of course, is an undertaking that I can embrace with enthusiasm. I wonder if Richard and Judge Roberts can as well.