“In the matter of reforming things, as distinct from deforming them, there is one plain and simple principle; a principle which will probably be called a paradox. There exists in such a case a certain institution or law; let us say, for the sake of simplicity, a fence or gate erected across a road. The more modern type of reformer goes gaily up to it and says, “I don’t see the use of this; let us clear it away.” To which the more intelligent type of reformer will do well to answer: “If you don’t see the use of it, I certainly won’t let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it.”
- Chesterton 1929 book The Thing
Let’s be clear: what do conservatives want to conserve? The wisdom of the ages embedded in the kludge that is our system of government. It is a mistake to go into the study of government, see a mess of unfairness and inefficiency, and immediately try to reform it without giving it a chance. Let me be clear: that is not to say that government always does things for good reasons. That’s pretty much opposite of what Libertarians believe. It simply means that almost always there are reasons for fences, and you should only tear it down if you figure out why it was built in the first place. Sometimes people build fences, or walls, for bad reasons.
Collective Action vs. Tyranny
Presumably you’re here because you are afraid of the current regime becoming tyrannical. If so, congratulations, you are a libertarian! At least as much as I am anyway. Libertarianism, at least the brand that I practice, is about constant vigilance: whenever the government does anything, it takes a little more power and we are that much closer to the George III who we fought a war to escape. Republicans like to say that America was founded on Christian principles – there is a grain of truth but it’s mostly nonsense. But what is clear is that America was founded on Libertarian principles – the government was set up to fight tyranny. Division of powers, checks and balances, what this means basically is that the Constitution sets up a government which is designed to be constantly in conflict with itself, so that no part can be too powerful.
Let’s start from first principles: if tyranny is so scary, why do we have government? The main reason we want government (which is not the same as how it arose) is to solve problems of collective action. There is a common good or value that everyone wants to protect, but no individual will step up because the cost to themselves is not worth the negligible impact they can have on the whole. Protecting the environment, defending the less fortunate, maintaining peace and liberty. These are absolutely necessary things that we need someone with big guns to step in and handle.
So government solves the problem of collective action: but it replaces it with the problem of tyranny. We can think of constructing the perfect government as solving a simple optimization problem. The more authoritarian you go, the higher the danger of tyranny and the lower that of collective action. The more libertarian you go, the higher the danger of collective action failures and the lower that of tyranny. Of course, there are many other orthogonal dimensions to government, but I would argue this is the most important.
Gorsuch is a textualist, Scalia was a textualist, I will argue that textualism is the optimal judicial philosophy. We have a body of laws, and above it a Constitution. However, there is always ambiguity and inconsistency among such a complicated and old system – the function of the Supreme Court is to reduce this ambiguity and inconsistency. The function of the Court is not to administer justice, except insofar as the Constitution is just.
Consistency and clarity are of utmost importance because we need to be able to figure out what is legal or not. Ideally, an interest in justice demands that we have a body of laws from which any individual can figure out exactly where they stand if they make any given action. This should be true even if the laws only tangentially apply to the situation at hand: this is why there needs to be a canonical interpretation to view every statute. Obviously this is a pipe dream but approaching this value is what the Court is for.
Here comes my argument for textualism or originalism: the only canonical interpretation of a piece of writing is the intent of the author. You read a statute, your friend in Florida reads a statute, how can you agree on what it means without communicating, except by each researching what the author would have meant? This is the only way of interpreting law where there is a concrete answer and the only problem is providing an algorithm for determining that answer. Any other interpretation requires an injection of one’s own values into the picture.
Say you’re like me and you have very little respect for the Constitution (it has after all been patched 17 times after release). Why would we want the Supreme Court to enforce unjust laws consistently instead of making their own decisions based on a better moral compass?
I have already mentioned why consistency is a useful value. Another reason, and probably the more relevant one for this class, is to defend against tyranny: whoever gives can take away. When the Supreme Court decided Roe v. Wade that became the lawful origin of the right to abortion. When the Supreme Court decided Obergefell v. Hodge that became the lawful origin of the right to marry. Liberals were really happy about this right up until the moment Donald Trump was elected.
We need the Supreme Court to exercise restraint and not make definitive interpretations outside the scope of the laws. If abortion had been fought through state-by-state and/or by Constitutional Amendment, it would have been a much harder fight but we wouldn’t be as worried about Ginsburg kicking the bucket.
Let’s be clear: we ended slavery by Constitutional Amendment. Nobody is afraid Trump will bring back slavery. We gave women the right to vote by Constitutional Amendment. Nobody is afraid Trump will take away women’s suffrage. The Supreme Court decided that abortion and gay marriage are legal, and as soon as a contrarian president came in we got in trouble.