Thinking about conflicts between principle and pragmatism take one to the heart of our current dilemmas in law and governance. Should we do whatever it takes to get the outcomes that we want at particular times–being realistic about how far short of our ideals the actual world remains? Or should we hold to principles we believe are good and true, even when they seem to take us places we would rather not go?
Reviewing Supreme Court Justice Antonin Scalia’s new book, Reading Law, Stephen B. Presser summarizes the argument against prinicple–against rule of law:
The task of a judge is to interpret, not to make, law. It is fashionable today to claim that this view is naive, that words have ineluctably elusive meanings, and that therefore judging is a creative activity, offering license to do justice rather than simply mechanically to apply ancient understandings.
Principles as ancient understandings that we apply mechanically–who could favor that?
But is such mechanical action the main trouble we face in sustaining a republic based on principles and dedicated to establishing justice? Our main trouble, I think, is that principle is being abandoned in the pursuit of desired outcomes. We are increasingly governed by stratagems of power without much reflection about principle at all.
Spielberg’s Lincoln is useful for thinking about this issue. Ackerman‘s take on the film is that “Abe Lincoln was a politician, a good one, and proud of it. He understood that, to do great things, you sometimes had to get your hands dirty.” That seems to place the emphasis in slightly the wrong place.
I would rather say that Lincoln teaches that first and foremost we must identify the most important principle, and then to remain relentlessly true to it, sacrificing as necessary to make it true. All men are equal before the law–if we insist that it is so.