Preliminary Thoughts on the Virtues of Passive Dialogue

The judicial, legislative, and executive branches interact in many ways. These interactions fuel a constitutional dialogue that serves as a backdrop to myriad governmental activities, both large and small. Although this on-going dialogue takes numerous forms and its quality varies, its existence is one sign of a functioning democracy. The judiciary’s participation in the nation’s constitutional dialogue is necessary, desirable, and, as an empirical matter, inevitable. The judiciary’s participation raises important normative issues as well. This article analyzes two competing models that bear on the normative question: what form should the judiciary’s participation take