Conservatism and Constitutionalism in the United States

Abstract

This paper inquires whether conservative political philosophy provides intellectual resources that might be expected to prevent judges from yielding to the temptation to impose their own strong moral beliefs about how society should be improved. The question emerges from the fact that for more than four decades a Supreme Court dominated by relatively conservative appointees has continued to produce decisions mandating radical social changes that cannot be convincingly traced to conventional sources of legal authority.

The paper examines a range of ideas about what conservatism is and rejects the possibility that most of these can be expected to discipline the temptation to impose personal moral visions and aspirations. However, one strand of conservative thought is identified that can provide the necessary self-restraint. This strand can be found in the writings of Burke on tradition and of Oakeshott on practical knowledge and in Scalia’s defence of the practice of defining traditions at the narrowest level of generality. It was manifested in ancient common law judging and is still implicit in otherwise inexplicable aspects of modern constitutional interpretation.