Justice William J. Brennan, Speech to Georgetown Univ., 1985

1
Justice William J. Brennan, Speech to Georgetown
Univ., 1985

• KEY ELEMENTS
• Main theme Brennans interpretation of the
  Constitution.
• For Brennan, the Constitution embodies social
  justice, brotherhood, human dignity, equality,
  values that contemporary society upholds and
  ought to be realized in order to produce
  progressive reform
• This means that, for Brennan, Constitutional
  interpretation must keep up with public opinion
  the document is a Living Constitution in this
  sense.
• By this idea, Brennan hopes to avoid the charge
  that a judicial activist such as he is imposing
  his own personal moral values on society.
• Also, the idea means that he rejects the idea of
  following the Framers original intent regarding
  the meaning of the Constitution.

2
Justice William J. Brennan, Speech to Georgetown
Univ., 1985

• POINTS FOR CRITICAL REFLECTION
• Why cant the legislative branch be in charge of
  settling issues and keeping politics up to
  date? Brennans answer because majorities make
  too many mistakes wise judges must do it for
  them.
• Any reasonable person can see that the things
  Brennan in particular finds in the Constitution
  are simply not there. Brennans response the
  document is ambiguous, not crystalline,
  always subject to interpretation.
• OK, but is it then possible for federal judges to
  continually play make-believe with the
  Constitution? And if so, why have the
  Constitution at all, if we are permitted to
  continually make stuff up about what it says?
  And wouldnt considerable danger arise from
  having unelected wise people doing so?

3
Robert Bork, The Struggle Over the Role of the
Court

• KEY ELEMENTS
• Main theme why Bork is opposed to judicial
  activism (a.k.a. noninterpretivism)
• Primary reason for his objection it threatens
  democratic governance insofar as it imposes an
  unelected judges personal moral views on society
• This is dangerous because there is no shared
  agreement in society about these moral views
• In practice, the result is the gentrification
  of the Constitution, meaning that the
  unrepresentative moral views of a certain elite
  class in American society are being imposed
• So what should be the role of a federal judge?
  To pay attention to the original intent of the
  Constitution, and punt those issues that are
  not clearly justiciable back to the political
  branches of government

4
Robert Bork, The Struggle Over the Role of the
Court

• POINTS FOR CRITICAL REFLECTION
• It could be that cases involving contentious
  moral issues might not be settled quickly or at
  all by the political branches (worst-case
  scenario example the Civil War)
• This means that, in a political environment
  characterized by sharp and irreconcilable
  disagreement over moral issues,
  government-by-judiciary is necessary to keep
  order. In turn, this might mean that Americans
  are incapable of democratic self-government.
• The above amounts to a Hobbesian criticism of
  Bork. The article does not address this
  criticism.