The Role of the Courts

At the beginning of chapter three, Wellman locates civil rights clearly within the realm of legal (not moral) rights; still, he notes that some moral rights (like those found in declarations of human rights) are often formalized into the law. Beginning his discussion of civil rights, Wellman writes that “[o]ur examination will reveal how deeply moral reasoning penetrates our legal system and how central the language of rights is to our political discourse” (41-42). My question, then, regards Wellman’s view of the role of the legal system. I’m wondering exactly what he views as the proper role of the courts in the broader political system. Each of the three cases he cites is an instance when the federal courts exercise their power to protect the rights of individuals.

If, according to Wellman’s argument above, governments formalize moral rights into legal rights through the process of lawmaking, wouldn’t it be preferable to have such work done by elected representatives who are (theoretically) charged with representing the will of their constituents instead of unelected judges with life tenure? Or, perhaps allowing the courts (viewed as a countermajoritarian body) to codify moral rights into legal rights is preferable since they are responsible for listening to the underdog; after all, we want our judges to listen to both sides of the case, find applicable law, and apply that law to the case regardless of the implications of the decision. Our view of a fair judiciary, then, relies upon impartial judges who can remove their own personal views from the case to make a decision that is based solely upon the law. If this is taken as true, then, allowing the courts to transform moral rights into legal rights causes problems because (it seems to me) that we are asking judges to express their own moral views. If we are asking them to transform these rights then (it seems to me) that we are asking them to create law based on morals. In the absence of an impartial statement of morals, it seems that the judges would need to default to their own moral standards.

I guess a larger point that I am trying to make is this: is there a role for an elected legislature in the creation and preservation of civil rights, or does the countermajoritarian nature of civil rights necessitate the increased involvement of the courts? I’m not trying to jump on the bandwagon and say that the courts are becoming increasingly activist; rather, I’m simply trying to demarcate the line of appropriate involvement in the creation and preservation of rights for both the judicial and legislative branches.