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Abstract

In addressing constitutional cases, judges face no shortage of legal rules, tests, principles, doctrines, and policies upon which to draw. In those cases, the challenge is assumed to be to identify and apply the most relevant such legal rules, tests, principles, doctrines, and policies. An accompanying judicial opinion tries to articulate this process, partly to legitimize the outcome, partly to provide guidance, and perhaps partly for purposes of civic education and inspiration. This Article recommends a somewhat different approach to constitutional adjudication. Specifically, this Article recommends supplementing the above standard forms of constitutional adjudication with appropriate and legitimate attention to what are classically referred to as the Four Cardinal Virtues. These cardinal virtues are thought to include wisdom, especially practical wisdom or prudence in a broad sense; courage or fortitude; temperance or self-control and proper self-restraint;and the virtue of justice as the sustained personal disposition to give everyone what is due and proper. rather than more broadly on all of the many arguable virtues, whatever their importance." But in compensation, this Article discusses the cardinal virtues, or how they lack, at two levels. This Article thus discusses the cardinal virtues as displayed, or not displayed, by judges themselves. This Article crucially emphasizes the importance of the cardinal virtues as displayed, or not displayed, by broader groups of actors including the general public, partly in response to constitutional decisions. This Article discusses the cardinal virtues in the context of various specific historical constitutional cases. Collectively, the cases justify increased judicial attention to the cardinal virtues, as an important element of constitutional decisionmaking, without improperly distorting the process of adjudication. The judicial cases themselves, however, should not bear the entire burden of justifying a more significant role for the cardinal virtues in constitutional adjudication. The value of the cardinal virtues, collectively and individually, has frequently been discussed by philosophers and social critics. To help make the case for greater attention to the cardinal virtues in constitutional adjudication, this Article draws upon some highlights of that broader discussion with special attention to issues of great contemporary importance.

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