You’ve heard the joke. What is the difference between God and a federal judge? Answer, God does not think he is a federal judge. Why are judges so powerful? Simply put, they are allowed to be the sole interpreters of the federal Constitution. As Bishop Hoadley stated in his address to the King of England in 1717, “Whoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the lawgiver, to all intents and purposes, and not the person who first spoke or wrote them.” An insightful observation.

What is the best way to interpret a constitution? Some parts do not require much discussion, like Article 1, § 2. That language is uncomplicated. The debate lies in interpreting less straightforward language. An example is in Article 1, § 8, which gives Congress power to coin money, collect money form taxes and duties, and regulate commerce between the states and with foreign nations. This language is clear-cut. But section 8 also gives Congress power to “make all Laws which shall be necessary and proper” to carrying out those powers outlined. Question: is it necessary and proper for Congress to create a bank? That was the debate between Alexander Hamilton and Thomas Jefferson you learned about in your high school history class. More relevant to our times is the example of the 14th Amendment, § 1 (“No State shall… deprive any person of life, liberty, or property, without due process of law”). Does the word “liberty” mean freedom against government detention, or does it mean civil liberties (right to free speech, religion, abortion, sodomy, etc…) as determined by the judiciary.

Senator McCain has asserted that if elected he would reinforce the conservative judicial counterrevolution that began in the 80s with President Ronald Reagan and the Federalist Society by naming candidates for the bench with a certain judicial philosophy, usually labeled originalism. This means that a judge must apply the text of a constitution based on what reasonable persons living at the time of its adoption would have declared the ordinary meaning of the text to be. Admittedly, there are problems with originalism (judges acting as quasi-historians), but the idea is that the judge looks to external static sources to make the decision rather than his or her own ideas of what a legal text ought to mean.

In contrast, Senator Obama has not said much about judicial appointments. He voted against confirming Justices John Roberts and Samuel Alito to the Supreme Court, and in those confirmation hearings he indicated his preference to name judges with an expansive, progressive view of the Constitution. Not surprisingly, he recently held up former Chief Justice Earl Warren (a judge conservatives usually detest), as an example of the type of judge he would prefer. In a speech to Planned Parenthood, he said, “We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old. And that’s the criteria by which I’m going to be selecting my judges.” I imagine that Senator Obama’s empathy criteria is meant to soften the sometimes-harsh blow the law can imposes on people. This begs a question, which people or organizations deserve the court’s empathy and which do not? Should the poor person receive compassion, and the full-weight of the law apply to the rich person, or corporation?

Which is a better judge, the one that applies the law in an indifferent manner, or the court that can demonstrate sympathy for the individual? Is there a right and wrong answer to this question?