This isn’t a law blog or a Supreme Court specific blog. We don’t pretend to be experts on either of those topics. Therefore, we opine on judicial philosophy with a certain degree of humility. Our opinion derives from our conservative, traditionalist background.
As a historian, we have a respect for primary source documents. They are the tools of our trade. From them we try to construct a humble narrative–one that attempts to get at the “true” history while allowing for difference of opinion on meaning.
When it comes to the Constitution, a document with which we are familiar and about whose history we know a little, we give it the utmost respect. Sure, it had its flaws–slavery foremost among those–but it is still a landmark, awesome, and foundational document.
Unlike any other prior founding and many since, it was adopted by the consent of the people and conceived by their representatives. From it flow all of our laws and the legitimacy of our government.
As the primary law of the United States of America, the Constitution, we believe, has primacy over all other laws–whether created by Congress, decreed by Executive Order or instituted by Supreme Court fiat. We believe that all government officials and all other laws must derive from the powers, authorities, and procedures it describes.
Thus, in considering a judicial philosophy–especially for the Supreme Court–we believe that they should take for guidance first the Constitution and then American legal precedence. In trying to determine originalism or original intent or a strict constructionist view of the Constitution, Justices and judges should look to three sources:
First, the intent of the Founders, inasmuch as it can be discerned from the primary source documents (letters, journals, notes) related to its creation.
Second, the understanding of the ratifying masses. There exist newspapers, pamphlets and transcripts of debates about the Constitution during the campaign for ratification. Judges can get at how a given section of the Constitution was understood by the people who ratified it.
Third, a reasonable interpretation of the text itself. We think legal scholars call this textual originalism.
From these three, not necessarily in that order, should derive a reasonable understanding of the Constitution. It is true that American jurisprudence harks to English common law, but unlike the English legal system, we have a written Constitution with holds primacy over the opinion of any given judge.
We believe that strict Constitutional interpretation is far superior to the judge or justice who makes law of their own morals or personal opinion. The Founders outlined a process whereby the Constitution could be changed by democratic process. Within the framework of the Constitution, laws which are not at odds with the Constitution can be created. Laws created by these processes have the virtue of common consent either by the citizens of the United States or their representative officials. Again, this is, in our opinion, far superior to the legal codification of personal opinion by judicial activists. Unable to persuade a large enough majority to adopt their measure or view through democratic process–Congress or Constitutional Amendment–these groups instead impose their views through what amounts to judicial tyranny.
We understand that even our favored judges do not always follow an “originalist” or strict interpretation of the Constitution. Just because they fail to do so does not invalidate the philosophy. And, with the collection and digitization of Constitutionally related primary source documents through Consource, understanding and interpretation of the Constitution is becoming easier and more accessible to everyone.
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