He sets forth a simple and clean case for why "textualism" and "originalism" fall short as an interpretive method and makes an argument for what distinguishes liberal and conservative jurisprudence. You can read the essay yourself – it isn't very long and it would be a pain in the ass to quote from it properly – but the nut is basically "liberals protect the weak from the tyranny of the majority" whereas "conservatives protect corporations and entrenched interests". I should point out here that I am pretty fucking liberal as these things go, and don't disagree much with his pointing out the ways in which conservative philosophy tends to favor the powerful whereas liberal philosophy tends to favor the weak. His way of putting it is creating a minor itch that I have to scratch, though, so I'm going to put it out there and let the wisdom of the crowds respond.
It is true that liberal philosophy tends towards protection of the weak and relatively powerless: anti-discrimination statutes, OSHA, union protection, etc. Conservative opposition to these programs – particularly on the grounds of a vague liberty that the poor have to choose their own means of degrading exploitation – is a pretty swift kick in the teeth of the weak.
It strikes me, though, that the rich are a pretty small minority and an appeal to the majority from the political branches that the rich have too much stuff is the kind of tyranny that the courts should be there to prevent. It also strikes me that this is not a novel thought – even inside my own head – so please don't presume that I have tricked myself into thinking I have made a profound discovery about group dynamics or the human condition.
Maybe the answer requires a kind of not-entirely-principled line drawing, since absolutism in either direction leads to absurd results. I find the echo in my head unsatisfying, though, so I open up the floor for people to call me a fascist, bleeding heart queer.
Last 5 posts by Charles
- If You Watch the Tape, You'll Still See What You Want To - September 29th, 2015
- On Dying - April 6th, 2014
- Not All Layers of An Onion Are Equally Worth Peeling Back - February 26th, 2013
- Did someone mention consistency? - February 5th, 2013
- Is That A Mote In Your Dog's Eye? - April 17th, 2012