Over the next few posts I intend to outline my political philosophy as it relates to American politics. My philosophy is certainly conservative as it's defined today, although I do not toe the party line on every issue. I intend to lay out my views on law, economics, moral legislation, foreign policy, the purpose and function of government and more. I decided to start with law, since that's the easiest field for me to explain and will probably be the most fully developed position I have.
What is the purpose of law? What is the function of judges in our legal system? And how does the Constitution interplay with democracy and law in general?
Without getting too esoteric, law is designed to facilitate beneficial relationships between parties by ensuring that certain forms of conduct will lead to clear, defined and predictable consequences. When two parties make a contract, the law protects both parties in the case of a breach. The law's protection affords both parties the opportunity to enter into that contract and to rely on the law to ensure that the contract is upheld, or that the breaching party will be subject to sanctions.
In every western legal system, judges are entrusted with interpreting the law. The United States has a fairly well delineated separation of powers, which grants the legislature the power to make laws, the executive branch the power to execute them, and the judiciary the power to interpret them.
The underpinnings of the legal system is the idea of consent, which is rooted in our democratic/republican system of government. The people choose their representatives, who then create and execute the laws. The people consent to those laws by voting (or by choosing not to vote) and everyone is bound by them.
The problem is when the Constitution runs contrary to the will of the people as evidenced by their elected representatives. Alexander Bickel called this problem the "countermajoritarian difficulty." How should a judge interpret the Constitution and the statute in question if the result will be to nullify the statute and therefore the will of the people?
In my mind, the difficulty is negated if the judge interprets the Constitution faithfully according to a legitimate interpretive methodology. If we presume that the Constitution is binding and is superior to any legislative-made law, then there's no difficulty. The Constitution wins out even if the present will is to enact a law that opposes the Constitution. As long as the Constitution is morally binding on the citizens of the United States, they cannot legislate contrary to its express provisions.
Since the purpose of law is to facilitate relationships by creating a public record of legitimate and illegitimate conduct, laws must be interpreted based on their plain meaning. I'm a textualist, which means I support interpreting legal texts according to their plain meaning. Intentionalism, which means interpreting a text based on the author's intent, confines the text to the less public intent of the author, which mitigates the public nature of law.
When interpreting the Constitution, I am an originalist. What that means is that I support interpreting the text based on the original public meaning, which in the nomenclature I've been using until now is the plain meaning of the text when the Constitution was enacted (or ratified). Originalism is merely the logical extension of textualism in that both search for the plain meaning of the text based on the time period during which the text was formulated.
An originalist judge does not run into the countermajoritarian difficulty when he is faithful to his methodology. If the plain meaning of the text is the proper interpretation of a text, and the text is binding to the extent that it negates the contramajoritarian difficulty, then the judge did not violate democratic norms by negating the will of the majority. However if the judge interprets the Constitution based on an illegitimate method, he is circumventing the will of the people and is "actively" legislating, because it's not the Constitution that is negating the will of the people, but rather the judge. Unelected judges overturning the will of the people would seem to run afoul of the democratic underpinnings of our republic.
One thing I will admit is that law is often not determinate. Sometimes we cannot find the plain meaning or there might be more than one meaning. In that case judges are allowed discretion, but unlike Randy Barnett I would impose a presumption of constitutionality instead of a presumption of liberty. Laws enacted by the people should not be overruled unless on the basis of clear evidence that the Constitution's original plain meaning opposed the law.
Would I consider any other method legitimate besides for originalism? As opposed to Robert Bork, I could envision other methodologies that would fit with my conception of law, and would place them on par with originalism. I have yet to see any other interpretive methods that fit this description, but they could be out there or perhaps they haven't been discovered yet. Maybe.
I do know that pragmatism or moral interpretations are flawed from the get go. Pragmatism, put simply, is the idea that constitutional interpretation cannot be practically guided by higher principles, and all that is left is judges weighing the costs and benefits of a specific law. I disagree with Richard Posner that originalism is untenable, and therefore I view his pragmatic enterprise as nothing more than judges legislating (something he readily admits, which I give him credit for). Ronald Dworkin's moral interpretation is flawed for a different reason. Judges are appointed and elected to interpret law because they are more knowledgeable than the average citizen. But judges are no more qualified than anyone else (in fact they may be less qualified than some people) to make moral determinations.
Dworkin's moral interpretation is an admission that legal texts can have different meanings. Originalists admit that as well. But unlike Dworkin, who requires the judge to decide between competing interpretations based on moral philosophy, serious originalists allow constitutional constructions that do not contradict the original understanding of the Constitution as a whole. A judge should use his discretion, which is something that is usually rooted in intuition and experiences, but not impute his moral views into the Constitution.
Some people argue that originalism is just conservative activism in more respected clothing. In other words conservatives support originalism because it leads to the outcomes they most often desire. Even if this contention is true (which it isn't) I fail to see the problem. If the only flaw with the originalist enterprise is that people suscribe to it because it leads to conservative outcomes, then I don't see a problem. What's wrong with choosing an ideology based on outcomes? The problem is when people decide individual cases based on outcomes. If a person binds himself to a certain methodology, and sticks to it through and through, he'll likely come across situations where his political preferences are trumped by his interpretation of the law. As long as he locks himself into a methodology, the interpretative method is not flawed based on its reaching the best outcomes in most cases.
I've simplified my views to a degree and left a few points out (for example the interplay between originalism and precedent), but I believe my basic legal philosophy has been laid out.