BUT WAIT, THERE'S MORE!

After reading these posts on morality, judges, and legislators, I've got dolls dancing in my head. The particular ones in my mind's eye are from Anita's parents' house: colorfully painted nested dolls on the sideboard in the dining room, looking on, smiling, while you eat.

An overworked opening metaphor, perhaps. But I can't help thinking: how is advocating the judicial clearing away of legislative judgments on morality -- and their replacement with a (contestible, controversial, judicially implemented) theory of liberty and license -- any different from picking up the first doll, only to find, underneath. . .another doll!? It's exciting the first few times you do it, but after a while you're not surprised any more.

(For the centrality of liberty and license in his scheme, see Barnett's paper on Lawrence in PDF format, here, and read the top paragraph on p. 16).

MORE: I don't think that there are no differences between moral judgments made by legislators and those made by judges. There may be real reasons to prefer moral judgments made by jurists under certain circumstances -- although I'll admit that my best stab at a distinction here would be open ended, like: judges reveal themselves as good users of moral judgments when they reach results I find morally appealing. The same goes for legislators. I don't know how you could develop a purely abstract account of the relative merits of judicial or legislative moral grounding. Folks in both offices have their particular moral dilemmas -- judges have the particular task of justifying their power, legislators have the particular task of knowing when not to be responsive to their constituencies, for example -- but the particular content of their moral judgments are going to change over time. So it's odd to prefer, as such, legislative over judicial "tyranny," as Professor Bainbridge does. I'll take the 39th, 40th, and 41st Congresses over the Taney and Taft Courts, and the Warren Court over the 106th and 107th Congresses.

MORE: See the post above as well.