What Phocion seems most troubled by is the link between sympathy and a judges own sense of right and wrong. This, presumably, is subjective and thus not an apt methodology for making decisions. As he puts it:
That leads to the potentially troubling idea that judges can overcome logic, reason, and precedent because of their own feelings on the issue. So, my problem with sympathy in judging is not all due to its unpredictable nature, but its rather anti-democratic, moralist and yes, amorphous, nature.
This is all true, to an extent (although I have to ask, is sympathy inherently illogical? Could we not rationally conclude that it is best for our justice system to be sympathetic and try and "problem-solve," in a matter of speaking, rather than rigidly applying rules that everyone agrees won't lead to just outcomes in a given case?). However, I don't think it is unique. Any decision judges make--including the one to follow set-in-stone rules--is a value judgment. The judge concludes that following the rules, the guidelines, is more important than doing something else (achieving what he deems a just outcome, for example). Moreover, we recognize that this decision isn't always moral (see, e.g., Nuremberg). If someone contracts to perform an assassination, then refuses to carry it out, we wouldn't label him immoral because he refused to "follow the rules." Any decision people make is justified by some rationale, whether because it respected stare decisis, or was most in line with the framer's intent, or because it was "just." One can debate the relative merits of one to another, but to assert that one is a priori to the rest is facile and unsupported by any corroborating text, philosophically or constitutionally.
This is not to say that following the rules is always, or even mostly, bad. As I've said before, following rules has many positive outcomes, chief among them predictability, and also probably being democratic as well. However, it is facile to say those values can never be outweighed. T. More talks about this too in the torture discussion, pointing out that Professor Yoo had an obligation to examine the normative impacts of the rules he was describing, creating, and applying. It was an abdication of responsibility for him to just throw up his hands and say, "I'm just following the guidelines." We create subjective standards in the judiciary all the time, asking them to evaluate and weigh things that are not easily quantifiable, and nobody even questions it (see below). To say that subjectivity is utterly foreign to our judicial process represents a massive distortion of our constitutional rules and traditions.
Another problem unaddressed was why all our other rules are different. Take stare decisis, for example. It seems like that would give us a nice, objective way to decide cases--just look at what we did before. However, that ignores the fact that precedent is often fragmented and incoherent, furthermore, since every case is different in at least some respects, taking this view involves elevating some differences ("distinguishing" cases) and suppressing others (cases that are "the same"). See generally Martha Minow, Making all the Difference: Inclusion, Exclusion, and American Law. Faced with not one but many choices then, judges are compelled to find the strand of precedent which seems to best fit some standard of justice or what have you, but this is necessarily going to be subjective. Blackmun recognizes this too in DeShaney, saying
Like the antebellum judges who denied relief to fugitive slaves...the Court today claims that its decision, however harsh, is compelled by existing legal doctrine. On the contrary, the question presented by this case is an open one, and our Fourteenth Amendment precedents may be read more broadly or narrowly depending upon how one chooses to read them. Faced with the choice, I would adopt a "sympathetic" reading, one which comports with dictates of fundamental justice and recognizes that compassion need not be exiled from the province of judging. [internal citations omitted]
The dispute between Justice Rehnquist and Brennan in his dissent (which Blackmun joined) over when prior cases mandated affirmative government action to satisfy 14th amendment guarantees elucidates the problem extremely effectively. Precedent is not a unified field, it is a variety of threads that, if chosen wisely, can be used to weave virtually any tapestry one might desire to create. Were it not so, there would never be any dissenting opinions, for surely learned judges would be able to discern the clear and unambiguous mandates of tradition! Original intent poses the same problems, surely we do not deny that different founders had different ways of seeing the world; plucking one man to elevate over all the rest is arbitrary and can, depending on which man you choose, justify virtually any outcome.
The final objection, which Phocion skirts but I do not believe adequately answers, is what happens when the text itself (alternatively, the framers themselves), seems to demand subjectivity. In a similar debate I had with Feddie of Southern Appeal, I pointed out that:
[N]ot all of the goals of the constitution can be encompassed via completely objective standards. That's why we have the "necessary and proper clause." What is "necessary and proper" to carrying out Congress' I.8 powers is subjective, debatable, and most importantly it is temporally variable. It was not necessary and proper for congress to impose limitations on local commerce in 1820 to regulate interstate commerce. However, by 1940, with our far more integrated and interconnected economy, then such actions may very well have been necessary to regulate ISC. The point isn't that the meaning "changed," it's that the meaning was always contingent on specific social situations which (as situations are apt to do) DID change. The N+P clause is thus a perfect example of the constitution allowing for subjectivity in our governmental limits, which is probably why originalists are so uncomfortable with giving it any vitality. But without that clause, the founders knew that the constitution would quickly become as impotent as the Articles of Confederation. Guilty beyond a "reasonable doubt" is another case of generally accepted subjectivity in our judicial process: it is impossible to provide objective benchmarks for what that term means, and trying to do so would defeat the purpose of the standard at all. We allow subjectivity in our judicial decisionmaking all the time without question, not because we adore judicial fiat but because we realize that the infinite number and permutations of relevant facts make every case unique and thus require some bit of discretion if we're going to achieve justice in the end. Whether to give a defendant 10 years or 20, whether or not negligence was "gross" or not, whether or not someone is "competent" to stand trial, all of these are subjective determinations, but ones that are necessary to the functioning of our constitutional system, and I highly doubt the framers would dispute that.
If the text appears to mandate subjectivity, I'd argue we are bound to that determination regardless of whether the founder's had a concrete "understanding" of the meaning of the words. And not only that, I'd assert that the founders would agree with me, and would be appalled to find out that we'd tolerate unjust outcomes because we assume that "intended" it to be so (talk about subordinating laws to men!).
I'll continue to assert that the 8th amendment presents a perfect example here. Phocion argues that
I should say that it is quite possible that the words "cruel" in the 8th amendment are readily susceptible to an objective test: what was considered cruel at the time of the amendment's passage.
That may well be objective, but it is drawn out of whole cloth--nowhere in the text of the amendment does it even hint we should interpret it in that manner. Certainly, had that been the intention, the framers would have used different words beyond "cruel" and "unusual," both which appear by their very terms to be variant upon context and thus not meaningful if we lock them into a single meaning. For example, if I asked most people today if flogging a prisoner was cruel, they'd probably say yes. If I asked most people in the time of the founders whether it was, they might say no. So yes, the meaning of "cruel" changed, because the descriptor "cruel" is a social term that inherently is defined however society sees it. The word itself connotates evolution and change (which is why I, for one, like the "evolving standards of decency" test). Phocion is reading into the constitution what he wants to see there, but his assumption that the founders intended "original intent" simply has no warrant propping it up. There is no there there, and in the case of certain clauses such an interpretation would run directly counter to the dictates of the text. Adopting an originalist position on the basis of objectivity would immasculate the demands of the 8th amendment (just as objectvity would destroy the N+P clause, and "reasonable doubt," etc etc). An 8th amendment that was written in the manner Phocion wants might read: "No punishments that were cruel, or unusual, shall be inflicted." But in absence of a specific mandate to lock the terms of debate into one era's understanding, it seems that we should take the words at face value, and that means recognizing their inherent fluidity.
Finally, the very fact that I, Justice Blackmun, and Phocion (among, many, many others) can argue about what the framer's "intended" undermines the claim that such a meaning is singular and readily presentable. It could very well be that there was no unified intent, that there were many intents which cannot be reduced to a single common denominator. Alternatively (and this is what I feel the real truth is), the intent might have been to have no intent, to allow the principles to speak for themselves and to adapt to the evolving situations that characterize an emerging society. As I wrote earlier in my argument with SA, I don't think the constitution should be construed to make it obsolete every 30 years. It seems readily apparent that a vibrant and meaningful constitutional tradition has to acknowledge the manner in which social situations interplay and connect with the text, which can drastically change the way we apply and interpret the words themselves. Again, it isn't the words that change, but the contingent situations that surround the words. Given that reality, the temptation to devolve our constitutional application into a mere "What Would James Madison Do" (WWJMD) has to be cast aside as incoherent, impossible and fundamentally inadequate to the needs of our society.
I've added Ex Post to my blogroll (or at least I'm attempting to, blogroller is sometimes moody). Disagreements notwithstanding, from what I've seen so far, they have consistently top notch writing and analysis.