David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
Learn more about PhilPapers
Brooklyn Law Review 70:475 (2005)
The Aretaic Turn in Constitutional Theory argues that an institutional approach to theories of constitutional interpretation ought to be supplemented by explicit focus on the virtues and vices of constitutional adjudicators. Part I, The Most Dysfunctional Branch, advances the speculative hypothesis that politicization of the judiciary has led the political branches to exclude consideration of virtue from the nomination and confirmation of Supreme Court Justices and to select Justices on the basis of the strength of their commitment to particular positions on particular issues and the fervor of their ideological passions. Part II, Institutionalism and Constitutional Interpretation, engages Cass Sunstein and Adrian Vermeule's recent essay, "Interpretation and Institutions." Sunstein and Vermeule contend that theories of constitutional interpretation are most fundamentally flawed because of their failure to take an institutional turn, but their supporting arguments lead to a related but quite distinct conclusion. Only a theory of judicial character can supply the diagnosis for the ills that Sunstein and Vermeule identify: constitutional theory must take an aretaic turn. Part III, Making the Aretaic Turn in Constitutional Theory, sketches an alternative approach to judicial review and constitutional interpretation that is rooted in contemporary virtue ethics. In Part IV, Constitutional Virtues and Vices, this sketch is given flesh and bones in the form of a theory of constitutional virtue and vice. Excellence in constitutional adjudication requires the virtues of judicial courage, judicial temperament, judicial temperance, judicial intelligence, and judicial wisdom (or phronesis). Most importantly, a virtuous constitutional interpreter must have the virtue of justice, which includes as components impartiality, lawfulness, and legal vision. Part V, The Aretaic Reconstruction of the Institutional Critique, returns to institutionalism as an approach to the theory of constitutional interpretation and argues that institutionalists cannot coherently refrain from making the aretaic turn. The article ends with speculation about the possibility of a path to the restoration of judicial virtue.
|Keywords||No keywords specified (fix it)|
|Categories||categorize this paper)|
Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
|Through your library|
References found in this work BETA
No references found.
Citations of this work BETA
Tomasz Stawecki (2012). Autonomous Constitutional Interpretation. International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique 25 (4):505-535.
Similar books and articles
Stephen Gardbaum (2002). Review: Robert Justin Lipkin, Constitutional Revolutions: Pragmatism and the Role of Judicial Review in American Constitutionalism. [REVIEW] Ethics 112 (4):838-841.
Michel Rosenfeld (2010). The Identity of the Constitutional Subject: Selfhood, Citizenship, Culture, and Community. Routledge.
David W. Tyler, Clarifying Departmentalism: How the Framers' Vision of Judicial and Presidential Review Makes the Case for Deductive Judicial Supremacy.
Lawrence B. Solum (2008). Constitutional Possibilities. Indiana Law Journal 83:307-337.
Samuel Freeman (1990). Constitutional Democracy and the Legitimacy of Judicial Review. Law and Philosophy 9 (4):327 - 370.
Bradley Miller (2009). Beguiled by Metaphors: The ‘Living Tree’ and Originalist Constitutional Interpretation in Canada. Canadian Journal of Law and Jurisprudence 22 (2):331-354.
Simon Butt, The Constitutional Court's Decision in the Dispute Between the Supreme Court and the Judicial Commission: Banishing Judicial Accountability?
Added to index2009-01-28
Total downloads16 ( #118,114 of 1,679,448 )
Recent downloads (6 months)1 ( #182,904 of 1,679,448 )
How can I increase my downloads?