Is it Constitutional? Four views.
I've done a lot of thinking about the " legislating from the bench" argument, which derives from the disagreement about whether the Constitution is a living document or not, which is really just two different ways of expressing how people think social change should come about. I don't know that I have a coherent position yet, but Lord knows that won't stop me from blogging.
A while back I thought to myself for the first time that many justices don't try to "get it right" when they adjudicate a case--they try to get it Constitutional. Is this what they should do? One extreme position might be that the court is a mechanism of social change that should be employed in any way possible. The other side--that the Constitution is fixed and should shape all legal decisions--isn't so extreme.
Trying to see what's Constitutional and leaving legislation up to the legislators--radical! I've come to respect the closely worded opinions of conservative justices who don't try to overreach--who say, I disagree with this decision, but it's clearly what's in the Constitution. If you want the law changed call your senator. I just can't decide if I agree with this or not.
But what philosophical view is that?
(1) Morality by fiat--the Constitution establishes what is right and wrong.
(2) Absolutism--the Constitution gets nearly everything right, so it's the best guide possible.
(3) Pragmatism--the Constitution is a decent way of doing law, and we need some way to decide cases while we continue to make new laws and get closer to being a just society.
(4) Local relativism*--the Constitution is all we have, so we might as well go with it.
I'd think that conservative justices mostly fall into category 2, but I realize that these categories don't map isomorphically onto the labels judges choose for themselves, which can include originalist, cautious liberal/cautious conservative, or moderate.
Well? John Roberts or John Stevens?
*Caveat on 4: I don't mean "relativism" in the full-fledged philosophical sense that nothing is right or wrong--I mean that 4 takes a very pessimistic view of what it's possible to know and how well it's possible to decide cases in general.