Conservatism and Constitutionalism in the United States

22 Pages Posted: 8 Mar 2019 Last revised: 11 Mar 2019

See all articles by Robert F. Nagel

Robert F. Nagel

University of Colorado Law School

Date Written: February 25, 2019

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 is found in the writings of Burke on tradition and of Oakeshott on practical knowledge and in Scalia’s defense of the practice of defining traditions at the narrowest level of generality.

Keywords: conservatism, judicial lawlessness, constitutional interpretation, traditional knowledge, practical knowledge, interpretive theories, judicial restraint, moral justification

Suggested Citation

Nagel, Robert F., Conservatism and Constitutionalism in the United States (February 25, 2019). U of Colorado Law Legal Studies Research Paper No. 19-5. Available at SSRN: https://ssrn.com/abstract=3348530 or http://dx.doi.org/10.2139/ssrn.3348530

Robert F. Nagel (Contact Author)

University of Colorado Law School ( email )

401 UCB
Boulder, CO 80309
United States

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