Conservatism and Executive Power

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The Economist cites the philosopher and political theorist Michael Oakeshott to describe conservatism as "To be conservative... is to prefer the familiar to the unknown, to prefer the tried to the untried, fact to mystery, the actual to the possible, the limited to the unbounded, the near to the distant."

From Europe, following US Supreme Court decisions, it seems to me that conservatives - or at least the 'conservative' judges - often embrace executive or presidential power (such as in the 'travel ban' decision or the 'census question'). This sounds counter-intuitive to me. Shouldn't conservatives favor a very weak executive, such as in Switzerland, because such a bounded power usually results in slow-moving and stable government / institutions?

Arne

Posted 2019-09-26T19:51:20.800

Reputation: 321

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Small-government conservatives (~libertarians) lost out in the Republican party (big time) when Trump took over. See https://www.politico.com/magazine/story/2016/09/conservatives-lost-republican-party-yuval-levin-2016-214228 or https://fivethirtyeight.com/features/the-end-of-a-republican-party/ etc.

– Fizz – 2019-09-26T20:06:58.040

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A different article in the Economist is self-explanatory in its title "Conservatism is fighting for its life against reactionary nationalism. Edmund Burke would not have approved of Donald Trump". I'll try to see if there are any studies among US Supreme justice for "reactionary nationalism" values... I'm not sure the classical Martin-Quinn scale covers that aspect well enough.

– Fizz – 2019-09-26T20:13:17.537

Can you share why you think more directly Conservative judges favor the executive? Just because a party to the lawsuit is the executive does not mean the judiciary sided with the executive because they are the executive. I would limit this to a single case. Explain the judiciary finding and then ask the question. – K Dog – 2019-09-26T20:17:31.947

So.. here is my question... why do people who are not conservative feel the need to quote some old dead guy with some respectable sounding job title like economic philosopher on how he insulted people he didn't agree with? Btw, I am neither conservative, nor liberal, by our modern day definition. I just think that there is some internal inconsistency... to quoting old dead guys to name call other people who also are prone to quoting old dead guys. – dolphin_of_france – 2019-09-26T20:20:03.920

I'm sorry, after reading the article it doesn't assert anything you are asserting. And the article reads like a bad Jen Rubin tweet in any event. This is unanswerable. – K Dog – 2019-09-27T13:56:49.743

3@Fizz Instead of those two comments which include sources you could have made a decent answer which may have been acceptable (and could have been edited). Comments are for querying the question only, anything resembling an answer or half-baked answer in comments breaks the stack exchange format, please don't. – inappropriateCode – 2019-09-27T15:32:13.853

@inappropriateCode: actually I don't know how to answer this question. All analyses of supreme justices positions I found don't cover the new nationalist angle of US conservatism. Perhaps something can be inferred indirectly, but to me it seem too tenuous to post an answer like that (although others haven't been so shy as you can see below). – Fizz – 2019-09-27T16:13:28.543

@Fizz In that case, it may be best to frame comments as a question about what kind of an answer is desirable or in scope? (In which case citations are surely fine.) Your comments read as an attempted answer, is all! – inappropriateCode – 2019-09-27T16:28:30.640

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@inappropriateCode: My comments are simply to inform the OP (and anyone else who might not know but care) that the meaning of the "conservative" is pretty much in flux in the US. Trump seems to be a "national conservative" according to the freshly minted distinction. To me it's an open question how conservative justices who don't own their seat to Trump are going to align behind the new national conservative vision, which is itself quite blurry at the moment.

– Fizz – 2019-09-27T16:38:34.673

Answers

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Given the power of judicial review, supreme court justices are able to interpret the constitution and declare laws constitutional or unconstitutional. A conservative supreme court justice might be tempted to use this power to declare all laws that do not conform to his particular conservative ideal of the world as unconstitutional. He might see a strong executive trying to make imprudent, radical changes and try to stop that executive by declaring his actions unconstitutional. This is, however, a short-sighted view of the US political system. If each office-holder just wielded naked power in whatever ways he could get away with it would cause lots of problems. Progressives might be okay with achieving progress by any means necessary, but the dispositional conservatives described by Oakeshott are wary of radical actions that don't conform with historical precedent.

Conservative justices prefer the current law of the land and sticking to their defined powers and existing constitutional structures. Conservative constitutional interpretation requires sticking to the tried and true founding document. They like textualism, limiting constitutional interpretation to the text of the document as it would be interpreted by those writing it. Conservative justices like strict-constructionism, only granting powers to government which were clearly enumerated in the constitution. Deviating from the constitution, by giving more power to the judges to enforce their conservatism, could actually be incredibly radical. It could undermine the judiciary itself and probably result in more instability and chaos than the stability they were originally trying to create. Conservative justices definitely channel Oakeshott when they reveal their preference for "the limited to the unbounded" in their use of their own power.

That being said, political appointees by the Republican party may or may not be conservatives as per philosophers like Michael Oakeshott, Edmund Burke, or Russel Kirk. The Republican party must, before all questions of philosophy, perpetuate itself by appealing to a majority of the America people. It's certainly reasonable to critique conservative political appointees as engaging in judicial activism for the sake of those who appointed them. This might not be conservative as per Oakeshott's definition, but might be some form of pragmatic political moving to preserve existing societal structures. Conservatism isn't a clear-cut ideology where there is always a correct answer. Edmund Burke, often seen as the father of modern conservatism said "Prudence is not only the first in rank of the virtues political and moral, but she is the director, the regulator, the standard of them all." A conservative always looking to take prudent action in pursuit of good, not dogmatic adherence to metaphysical or ideological principles.

lazarusL

Posted 2019-09-26T19:51:20.800

Reputation: 10 254

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Conservatives in the US would favor a Federal Government with narrowly enumerated powers. Unfortunately, the laws as passed by Congress, enforced by the Executive, and judged by the Supreme Court of the United States, have shifted power from the legislature to the executive.

Conservatives then, understanding that things can't be judged as we wish them to be, but only as they are. Particularly on the Census Travel Ban, Congress surrendered their legislative power to the executive, bypassing the concept of the non-delegation principle through the legal fiction of "intelligible principle."

This is particularly true for Conservative judges, who are limited to using the laws as they exist to analyze the case before them. They shouldn't go beyond the scope of the case, or re-legislate regulations, for that is not their power.

Drunk Cynic

Posted 2019-09-26T19:51:20.800

Reputation: 9 828

2@Fizz Not driving towards a no true Scotsman fallacy – Drunk Cynic – 2019-09-26T22:07:04.863

I think this can be summarized in more direct terms as: the conservative justices see it as the Congress' job to limit the self-expansion of executive power. – Fizz – 2019-09-27T18:09:16.687

"They shouldn't ... re-legislate regulations, for that is not their power." What do you mean? They absolutely have the power to invalidate regulations that are inconsistent with the constitution or with the statutes that authorize them. – phoog – 2019-09-28T03:05:15.343

@phoog They can invalidate, but they can't rewrite. Consider the Roberts decision on the Individual Mandate. – Drunk Cynic – 2019-09-28T13:30:43.880

@DrunkCynic they can rewrite regulations just as well as they can rewrite legislation, which is to say not at all literally, but quite a bit practically. – phoog – 2019-09-29T07:59:06.793

@phoog they can "practically" but that's kinda the whole point. Conservatives think justices absolutely shouldn't legislate from the bench, even if they can get away with it. – lazarusL – 2019-10-04T14:15:13.497

@lazarusL the problem is that it is impossible to create a system in which judges do not interpret law and balance competing requirements of different laws. Therefore, defining "legislate from the bench" becomes an exercise in choosing where to draw a line somewhere on a spectrum. That is at least as susceptible to differences of opinion as is the interpretation of legal texts in the first place. The term is a quasi-objective denunciation applied to decisions that someone just doesn't agree with. – phoog – 2019-10-04T15:29:10.683

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This is an incomplete answer, but I think it's important to point out a misconception you're working with.

In the West, at least, we're so used to discussing politics using the Left-Right spectrum, that we tend to oversimplify things and miss important distinctions. One definition of "conservative" would, as you say, embrace a weak executive with limited government powers spread out among states and local governments.

It is common, at least in the US, to use "conservative" to mean "right-wing" more generally. So when people talk about Conservatives, often times they're using it in a way that mixes small-government conservatives in the same category as right-wing supporters of executive-power (John Yoo being a good example of this) and Christian conservatives who want to use government power to promote their views on morality (Senator Josh Hawley is an example of this).

So, particularly in the US, someone who is described as "conservative", or who self-identifies as "conservative", is not necessarily a conservative in the sense that Michael Oakeshott means it.

divibisan

Posted 2019-09-26T19:51:20.800

Reputation: 19 513