“Constitutional Humility: The Contested Meaning of a Judicial Virtue”
By Robert J. Burton and Zachary K. German
JMC fellow Robert J. Burton and Zachary K. German have recently co-written an article for American Political Thought Journal, “Constitutional Humility: The Contested Meaning of a Judicial Virtue”:
References to the “humility” and “hubris” of judges are common in American political and constitutional discourse, but neither public nor scholarly commentators have developed an adequate theoretical framework for what humility means in the context of constitutional jurisprudence. In this article, we first draw out the common themes and tensions among conceptions of judicial humility by providing an extensive review of scholarly treatments of humility as a judicial virtue. Second, we develop a theoretical account of constitutional humility that delineates two interrelated dimensions: “epistemological humility,” an inward-looking, self-referential dimension; and “institutional humility,” an outward-looking, other-directed dimension. We argue that these dimensions work together to provide a complete account of constitutional humility. Finally, we conclude by highlighting how this conception of constitutional humility can improve our judicial practice and public discourse.
Robert J. Burton is the Menard Post-Doctoral Fellow at the Center for the Study of Liberal Democracy at the University of Wisoncin-Madison. His research and teaching focuses on the First Amendment, religion and law, and theories of conscience in the history of political philosophy. His current book project is titled, A Conscience Safe for Politics: Hobbes, Locke, Rousseau, and the Formation of the Modern Conscience. Burton also conducts research in American political thought and constitutional theory more broadly, including “Tocqueville, Religious Liberty, and the Nexus of Freedom,” and “Aristotle and Madison on the Cause of Faction.” In his teaching, Burton has extensive experience leading simulated learning scenarios, including constitutional conventions, mock trials, and U.N. summits.
Professor Burton is a JMC fellow.
Zachary K. German is an Assistant Professor in the School of Civic and Economic Thought and Leadership at Arizona State University, where he teaches American political thought and constitutionalism. His research includes work on American political thought, constitutional interpretation, statesmanship, politics and religion, politics and culture, Christian political thought, Montesquieu, and Tocqueville. His current book project examines statesmanship in the thought of Montesquieu, the Federalists, and the Anti-Federalists, concerning the relationship between institutional design, culture, and the character of a people. He is a founding faculty member of the new School of Civic and Economic Thought and Leadership at ASU.
American Political Thought: A Journal of Ideas, Institutions, and Culture is a JMC supported journal that bridges the gap between historical, empirical, and theoretical research. It is the only journal dedicated exclusively to the study of American political thought. Interdisciplinary in scope, APT features research by political scientists, historians, literary scholars, economists, and philosophers who study the foundation of the American political tradition. Research explores key political concepts such as democracy, constitutionalism, equality, liberty, citizenship, political identity, and the role of the state.
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