Making Laws Moral: A Defense of Substantive Canons of Construction

Judges play a central, and difficult, role in our regime. The difficulty arises from our expectations for them. Judges, we demand, should both ensure that justice is done and be neutral arbiters of the laws enacted by the people. These two responsibilities are in constant tension, and it is all too easy for judges to emphasize one responsibility at the expense of the other.

Judges should be neither mere minions of the legislature nor our Platonic Guardians. We do not need enlightened despots to impose justice upon us or to trick us into doing justice by pretending that they are implementing the popular will when they are really doing what they think is right.