What is a Legal Conservative?

How does one define a legal conservative? The terms “conservative” or “liberal” are often used by others to describe a judge’s philosophy or judicial rulings, but what is meant when someone is described as a legal conservative is not always clear. A cynical and incorrect view is that a legal conservative is just the name for someone who disagrees with a legal ruling.
In the course of interviewing hundreds of candidates for judicial openings, it was rare, almost non-existent, to have judicial applicants self-describe as liberal, although many took pains to self-describe as moderates. Some applicants did self-describe as conservative, but there was not always a consistency between the use of that label and their broader description of how they would approach legal decision making. Many applicants used the same terms but appeared to have materially different understandings of what it meant to be a legal conservative.
Crucial then to having a meaningful discussion is understanding, or at least attempting to define, the terms used in the discussion. While imperfect and capable of being improved upon, I would propose the following parameters as defining a legally conservative philosophy or approach to legal interpretation.
At its core, a legally conservative philosophy tries to discern what the textual meaning of a constitutional or statutory provision is. This a historical analysis based on the text of the provision as contextually understood when passed or adopted. By way of example, the current modern usage of terms that are also found in the U. S. Constitution may bear little relationship to the understanding of those terms at the time of the ratification of the Constitution. To determine the meaning of provision, the terms must be understood in both the internal and external context that existed at its ratification. It is legally conservative to attempt to discern the common meaning as expressed in the text and shared by the drafters and ratifiers. One may ask honestly what the alternative to this basic interpretive approach is, and the answer usually is an ad hoc approach that depends on who the judge is, not what the constitution or the law meant. this is a core concept for to a large degree it determines whether we have a government of laws or of men.
The above approach, an approach similar to that routinely used to analyze the the meaning of important contract disputes, can resolve many interpretive questions if faithfully pursued, but may still not address all the ambiguities needed to resolve a legal dispute. If the provision is still ambiguous, then the approach to the case often should be controlled by the fundamental structural understandings of the nature of government.
The fundamental structural governmental concepts start at the Federal Level with an understanding that the Federal Constitution is a document of enumerated powers- Congress or the Executive needs to have a specific grant of authority to do almost any action. In the absence of a clear grant of authority in the text of the Constitution, the Conservative position is that Congress or the executive has no authority to act. The States and the people are not so limited at the Federal level, they have the ability to act the constitution or federal actions explicitly authorized in the constitution prohibit them from acting. The conservative understanding therefore is that Congress loses if it does not have clear authority for its actions, and the states or the people win if Congress does not have clear constitutional authority for its action.
Conversely, the fundamental governmental structure within a state is reversed. State constitutions are limiting, not granting documents,and state legislatures are free to act unless specifically limited by the constitution. They have plenary power power, residual power, unlike Congress, and can lawfully act unless clearly limited by the Constitution or a duly enacted federal law pursuant to a clear grant of constitutional authority. The conservative understanding is that state legislatures win, unless clearly prohibited by the state constitution.
State executive branch agencies, on the other hand, are akin to Congress, in that they need specific authority to act, so in the absence of specific legislative or constitutional authority to act, their actions will not be sustained.
An important concept to discuss is the conservative understanding of precedent. For all judges that are at a level below the U.S. or a state supreme court level, the conservative understanding is that they are required to follow all binding precedent even if they disagree with it. For justices at the highest levels, however, the question arises of whether they should follow precedent, Stare Decisis, or whether they should refuse to follow prior case law if if the prior case was not decided on conservative principles. Especially in the context of constitutional interpretation, where the only alternative to overruling a prior case that was wrong is a constitutional amendment, it is a conservative legal position to interpret the constitution according to conservative principles, even if that requires reversing prior precedent.

These basic principles are not exhaustive, and can be more refined with time, but should provide at least a starting point for understanding a legally conservative interpretive philosophy.

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