I cannot realistically choose not to be ruled by an elite.  At this point in history I probably cannot even choose not to be ruled by a technocratic elite.  But I do prefer to be ruled by the portion of the elite which is allied with a majority of the population. 

That ought to mean a strong role for the elected legislature as contrasted with the unelected bureaucracy and judiciary.  Such constraint, however weak it may be in such times, is helpful, just because it is more difficult for an entire population to lose its common moral sense than for technocrats to lose it.

Complicating the matter is the fact that at present, the legislature is itself divided into two factions.  Both claim to embody popular rule, which in the strict sense is impossible.  But the leftist faction is wholeheartedly allied with unelected technocrats, and wants to employ coercion to displace the traditional morality, while the other faction is merely ambivalent about technocracy and morality.

The idea has been floated that since conservative judges are at last being appointed to the Supreme Court, the conservative commitment to the original intention of the Constitution has “outlived its utility,” and that conservatives should instead adopt something like the leftist idea of a “living” Constitution but turn it to conservative ends.  This seems to imply that originalism was never really about the Constitution but was merely a conservative pretense for gaining power, in the same way that the “living” Constitution has been a liberal pretense for gaining power.

I hope I am reading this new conservative theory incorrectly.  Perhaps no pretense was intended, and if so, I will accept correction.  But I am sure that we should reject pretenses and deceptions of all kinds, even noble lies.

Besides, the notion of a “living” Constitution is hardly more palatable in the hands of conservatives than in the hands of leftists.  It is merely a way to disempower legislatures altogether, so that law is shaped entirely by the executive in alliance with the technocrats.

Granted, it is impossible for a judge not to consider the common good, for if he does, he will be incapable of understanding the considerations of common good that the legislators themselves intended.  And this is important.  But the chief responsibility for considering the common good, along with its relation to natural law, common law, law of nations and the rest of it, lies with those who made the Constitution and laws, to whom, under all but the most extreme circumstances, he should defer.  Judges are not competent to take first place and set policy for the entire country.

Republished with permission from the author’s blog, The Underground Thomist. For information on his books for scholars, general readers, and students, see his Books Page.

J. Budziszewski

Professor Budziszewski specializes in political philosophy, ethical philosophy, and the interaction of religion with philosophy. Among his research interests are classical natural law, virtue ethics, moral...