As I mentioned in the comments, I will be flying out to Colorado this March for the Weekend Conference on Law. While I’m not particularly interested in law, I am interested in the question of how a Constitution functions in a free society, and specifically, what should be the role of a jurist in interpreting it.
I must confess that for a long time, I could not see past the activist/original intent dichotomy that has defined mainstream debate on this issue. I thought that the only alternative to letting judges rule however they wished was to restrict them to ruling based on the meaning of a given Amendment, law, or statute based on an historical analysis of what such meant when it was enacted.
Then Tara Smith went and blasted that dichotomy out of existence. In that article, she explains that “judicial activism” is a package deal. The question is not whether a jurist is “activist” but what their activism consists of. Proper judicial activity, she says, should involve the interpretation and application of abstract legal principles — fundamentally, the basic principle of “rights.”
It seems so obvious, and perhaps it is if we are talking about an ideal society based on Objectivist principles, but advocating it in the United States today is not. After all, Smith is not saying a jurist should be a strict constructionist. It would seem, therefore, that she is advocating a jurist should rule based on his or her personal convictions.
Now, let me make it clear that from this point forward, I’m speaking only of my own views. While Smith developed hers more fully at this year’s OCON, I was not present for her lectures and have no idea of their content. She may agree with what I’m going to say or she may not (I look forward to raising some of these issues with her in March). That said…
Since the role of a jurist necessarily involves the interpretation and application of principles, strict constructionism is a nonstarter. You cannot look at an abstract statement, no matter how clearly written, and determine what it means or how it applies to a specific case. Knowledge is contextual, so to grasp the meaning of any given principle, you have to understand its full context. This means, to interpret a constitution, you have to identify the basic principle of which its various clauses are expressions.
Lucky for us, there is no need to guess what principle the constitution was designed to express — the Founding Fathers told us explicitly. This country was founded on the principle of individual rights. It was founded on the principle that a government exists only to protect man’s rights, and that the government, therefore, must be strictly limited in its proper functions. To understand and apply the Constitution, we have to keep this fact in mind.
I came to this realization during a recent conversation with my brother where he said in exasperation, “The Constitution says, ‘Congress shall make no law.’ You can’t get any clearer than that!” He’s right, of course — unless you drop the context of the principle the Constitution was intended to express. Suppose, for example, that the purpose of the Constitution wasn’t to restrain the government in order to protect individual rights. Suppose its purpose was to guide the government in the attempt to achieve the common good. In such a case, someone might very persuasively argue, “Since this particular form of speech doesn’t lead to the common good, it is not part of your freedom of speech. The government therefore not only can abridge it, but must.”
In fact, this is precisely what we’ve seen happen in this country. To justify an act of government, an advocate must appeal to some higher principle, and so nothing matters more than what principle he appeals to. And whether people recognize that principle as legitimate.
This is how altruism undercut this nation. So long as those who wished to expand government power could appeal to sacrifice, “the common good,” or any other similar principle, the Constitution could only act to retard capitalism’s destruction. It was only a matter of time before our freedoms were stripped away, precedent by precedent.
To establish a proper government, a constitution is vital — but to establish and maintain a constitution, a society committed to the principle of individual rights (and its egoistic moral foundation) is indispensable.