Sunday, October 30, 2005

Conservatism, originalism, and precedent: Going back to the source

I don't think that anyone who would think of overturning a well-established precedent (such as Roe v. Wade) deserves to call himself or herself a conservative or to serve on the Supreme Court for that matter. Conservatism, at least in the sense in which I've always understood it, is about leaving well enough alone, of avoiding change for the sake of change, particularly when it proves disruptive, for as Edmund Burke was fond of saying, "in every revolution there is something of evil."

Those on the bench who condemn the "judicial activism" of liberal judges but who have the hubris to overturn a great mass of law when they think that it runs counter to their interpretation of what the founders intended (quite a stretch already) should go back to the constitutional law textbooks and read the great Justice John Marshall's opinion in McCulloch v. Maryland. In upholding the constitutionality of the federal government granting a charter of incorporation to the Second Bank of the United States in the absence of any explicit constitutional grant of power to do so, Marshall writes:

But it is conceived, that a doubtful question, one on which human reason may pause, and the human judgment be suspended, in the decision of which the great principles of liberty are not concerned, but the respective powers of those who are equally the representatives of the people, are to be adjusted; if not put at rest by the practice of the government, ought to receive a considerable impression from that practice. An exposition of the constitution, deliberately established by legislative acts, on the faith of which an immense property has been advanced, ought not to be lightly disregarded.

And this from a man who could claim to know the intent of the founders... since he knew almost all of them, personally! It's about time that modern originalists dispensed with their pretentions to be able to divine the intent of the founders.

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