Justices must by necessity implicitly or explicitly consider questions of wisdom, justice, social harm and morality when deciding if a statute is unconstitutional. They should ensure that all these considerations are rooted in constitutional principles and constitutional questions. Society should not imagine these considerations are not present in judicial reasoning, nor should justices be ruled by them. The questions justices properly ask when deciding if a statute is unconstitutional are shaped by a moral vision of the proper role of the judiciary in representative democracy.
There are times when the correct constitutional reading of a challenged statute is explicit and uncontroversial. In these cases, it would be extremely harmful to the legitimacy of both the court and the constitution to rule in opposition to the uncontroversial reading. However, abundance of clarity leading to homogeneity of opinion is not the norm. In the majority of cases, justices must make choices about how to read the constitution, which precedents are most relevant, what principles to draw from those precedents, whether those precedents should be upheld or modified, when the arguments of dissenting opinions are more convincing than the majority, the natural meanings of words, and the parsing of punctuation. When faced with these questions about the application of the constitution, justices have further choices to make about how best to rule. One choice they might make is to apply an academic theory of interpretation. For example, a justice might ascribe to the original meaning school which holds that the text should be read by modern observes as it would have been by reasonable people when it was written. By contrast, a justice might instead ascribe to the strict constructionism school which holds that the text should be read only as written, and any further consideration of meaning is to be avoided. Depending on the academic school they find convincing, a justice’s understanding of the same clause of the constitution might be starkly different.
Another choice the justice can make is to apply a legal philosophy. For example, a justice might choose to prefer upholding existing precedent rather than overturning it by a new argument – the doctrine known as ‘stare decisis.’ A justice might also show deference to the judgment of the legislature, applying a presumption of constitutionality to a questioned statute – an example of the doctrine of judicial restraint. All of these choices and many more, regularly inform judicial rulings, and are fundamental to the way justices decide constitution questions.
A justice who ascribes to strict constructionism may argue, as did Justice Hugo Black, that absolutely “no law… abridging the freedom of speech” is constitutional. By contrast, a justice who ascribes to original meaning may argue for an understanding of the same text which allows for more legislative leeway. A justice who ascribes to stare decisis may argue, as did...