Bainbridge's Podiatric Friendly Fire

Steven Bainbridge shoots himself (and other pro-life, judicial conservatives) in the foot in a classic case of not understanding the basis of his own position. Furthermore, (as I will discuss more fully below) he adopts the very principle of judicial activism that he is criticizing.

First, a little background. This is a recent entry in a debate that has been going on between Bainbridge and Randy Barnett of the Volokh Conspiracy. I may have missed some posts, but here is a general overview of the correspondence: Bainbridge, Barnett, Bainbridge, Barnett, Bainbridge, Barnett, Bainbridge, Barnett, Barnett. To summarize all of this, Bainbridge began by arguing that judicial activism is contrary to the original intent of the Constitution, but his argument has shifted to the assertion that the immoral results of that activism would have been deplored by the original authors. Furthermore, although the issue of democratic majoritarianism has been a theme throughout Bainbridge's discourse, it has shifted from being a corrective to putatively illegitimate court activity to serving as a legitimate alternative to the current constitutional order in its own right.

I agree with the substance of Bainbridge's agenda, which broadly speaking is an attempt to hold the line on traditional moral values. But in conflating the jurisprudential argument with the moral one, and compounding this by advocating majoritarianism as an end in itself he has ceased to argue from a conservative position and has begun to advocate revolution.

One of the chief foundations of the conservative philosophy (whether judicial, political or social) is that order is a primary good and that change to an established order, however morally necessary, should only be effected gradually and with deliberation. In the judicial sphere, this principle is called stare decisis and indicates that the any proposed revision of existing law or precedent must meet the burden of both necessity and prudence. This ensures that those living under the law can know in advance what is expected of them and will have adequate time to adjust if those expectations change. This principle is admirably reflected in the US Constitution and in much of its judicial interpretation throughout the history of the Republic. It is against this principle, the sudden change of expectations through judicial fiat, that the practice of judicial activism offends.

But Bainbridge's criticism seems to have moved from the lack of checks on judicial activism, such as:

The founders were very big on checks and balances, but in our time we have ceded a wide range of issues to nine unelected old men and women who decide issues of national import with confidence that they are immune from being held accountable for their decisions.

to an outright claim of legislative superiority in his most recent posts:

The dispute remains - who decides? A judge who agrees with Barnett that a fetus is not a person can effectively take the issue [off] the table, at the very least until turnover on the court produces a majority prepared to reverse that decision. (And, as Casey demonstrated, even the more conservative members of the legal elites cannot be trusted to do the right thing in this area). When a legislature decides to allow abortion, we can try voting them out of office immediately. In a democracy, there is always a risk that immoral laws will be made. I simply prefer to take my chances on legislators who can be held to account through the electoral process than on unelected judges subject to no meaningful checks and balances.

Now it may be that this position has merit, but it is dangerous not to recognize that it is a radical departure from the earlier point. Curtailing judicial activism is an eminently conservative endeavor, but replacing it with unmitigated democracy is not.

As I suggested earlier, there is an even more dangerous theme in Prof. Bainbridge's recent discussion: the silent adoption of the very utopian vision that has inspired most of the egregious examples of judicial activism.

Any legal theory that would validate the murder of over 40 million innocent unborn children raises serious moral concerns, because it likely constitutes material cooperation with evil.

Again, I do not disagree with the content of Bainbridge's analysis. Roe does indeed raise serious moral concerns. But moral judgment does not, in itself, provide sufficient reason for overturning established law because it begs the question "whose moral judgment?" In a society of nearly 300 million potential judges, the presumption of legitimacy must rest with established legal procedures, however repugnant some of the results may be. If it cannot be shown that a given decision is based on illegal processes (and I think both Lawrence and Roe are vulnerable to this criticism) then attempting to trump the legal procedures with moral arguments essentially invites a counter activism that can only lead to chaos. And chaos, as Hobbes and Kirk have both shown, favors not justice but the rule of the jungle.

It would have been far better for Prof. Bainbridge to have stuck to his original argument. For one thing, he could have avoided Barnett's rejoinder that

HIS theory of the Constitution in general, and of the 14th Amendment in particular, would allow abortion--which he considers evil and murder--to continue unchecked so long as a mere majority of the legislature so vote. Indeed, the pro-life forces repeatedly say that they this is an issue properly to be left to the states.

The argument that Roe and Lawrence are a break with both interpretive precedent and actual positive law, and therefore beyond the legal capacity of judicial review, is one that can be readily made. This casts the Supreme Court in the innovative role and lays the groundwork for calls to reign it in. But an appeal to democratic majoritarianism does not merely check the activism of the supreme court, but replaces it with a new activism and invites a descent into civil war carried on by other means. And, as we learned a century and a half ago, those means do not long remain other...

UPDATE: Joel at Calblog makes a good case for one approach I think could work for overturning Roe. Since he also uses the phrase "shot in the foot", I thought it was worth linking, even though he doesn't address the jurisprudential issue discussed above.