Constitutional Interpretation

Abstract

Recent decisions of the Rehnquist Court--particularly the Court's 1992 decision in Planned Parenthood v. Casey have caused many to question widely held assumptions about the meaning of judicial conservatism. In this article, Ernest Young argues that the views of the modern judicial "conservatives" such as Judge Robert Bork and Justice Antonin Scalia are antithetical to classical conservative political theory, as exemplified by the writings and speeches of the eighteenth-century British philosopher/politician Edmund Burke. In particular, Mr. Young argues that strict adherence to the original understanding of the Constitution, judicial deference to democratic majorities, and formulation of legal directives as bright-line rules are all inconsistent with classical conservatism. Instead, Mr. Young advocates an approach to constitutional interpretation inspired by Burke's emphasis on tradition and evolutionary reform. Moreover, Mr. Young speculates that it is precisely this "common-law constitutionalism" that may be driving the emerging center of today's Supreme Court.