Okay, I just checked out Lawrence Solum’s thoughtful critique of my column. Let me first say that the undertow of his legal abstraction poses the danger of carrying me far out to sea on a subject I may be unqualified to discuss at his level.
That said, it seems to me the gist of his point is that a dead constitution is not much more useful than a living one if the Justices charged with reading it are arrogant jerks with no sense of responsibility or reverence for the rule of law. I don’t have the time at the moment to read his
“Virtue Jurisprudence: A Virtue-Centered Theory of Judging” which even the author concedes has a “high abstraction quotient.” So, if I’m doing a disservice to his position I apologize.
That said, I have to say I entirely agree with him except where he says I’m actually wrong. He proposes, as far as I can tell, to emphasize the appointment of truly excellent judges (not in the Bill & Ted’s Excellent Adventure sense nor in the Monty Burns “E-x-c-e-l-l-l-l-l-e-n-t sense but in the literally excellent sense) who revere the rule of law. He calls this an Aretaic turn. Okay, that’s cool by me. I am all for judges constrained by the dogma of excellence, virtue and the rule of law (Heck, I’ve been down with good dogma for a long time). But, it seems to me, that an excellent, virtuous and rule-of-law-loving judge would consider the Constitution to be far more dead than alive.
In other words, Solum says my theory is useless if we don’t have excellent judges. Fair enough. But I say that a good judge would, by definition, not veer too far from what my good theory dictates (barring the occassional exceptional situation). Again, I could be wrong, but Solum seems to be saying in effect traffic laws are useless without conscientious drivers. And I agree with that. But if I were to ask the average person what a conscientious driver is, he’d probably say “someone who obeys all the traffic laws.”