Judicial Philosophy


Please see the disclaimer.

I thought that, since I am going to be publicly disseminating my opinions on judicial cases, it might be wise to let everyone know up front what judicial philosophy I believe. Of course, throughout the course of this blog, I may discover that I actually have different ideas, and even if I don’t, my philosophy will probably still evolve with time.

But it goes a lot further than that. Defining and refining that philosophy, and perhaps getting people to think about it, is another purpose of this blog.

The first thing you have to know about me to understand my philosophy is that I am a member of The Church of Jesus Christ of Latter-day Saints. And I believe it wholeheartedly.

That means that my ideology has religion sprinkled throughout, even if it is still based on reason and history.

And it is definitely based in both because I am a student of history, actually. I have always loved history, just not in the way it’s usually taught in school.

To me, the overriding theme of all of human history is the fact that all nations that rise will eventually fall. It has happened to thousands in the past, and I believe that none of the nations now existing will be exceptions.

That includes the United States of America.

But I also believe that such a downfall need not happen, that a nation can last forever, even for eternity. And that is the gist of my judicial philosophy. It’s about judges applying the law as it currently is (textualism, specifically), with an eye toward what will help a nation to endure forever.

To learn how an nation would last for eternity, an eternalist would study history; it’s ripe with examples of how nations are destroyed, so perhaps it might have something to say about how to stop such destruction from happening.

And indeed it does.

But eternalism is not just about the lessons learned from such a study. Many people who study history come up with different ways to interpret history anyway, so applying the principles uniformly would be impossible, since not all would agree on what principles are important.

There is another dimension as well: culture. The popular opinion of the nation, as well as the customs and traditions, should affect how eternalist judges rule. Since eternalists want a nation to last, their first priority is maintaining the stability of the nation, and upsetting the status quo too much could disturb that stability. That is why they must consider the culture and political climate.

Thus, eternalism does not allow blindly ruling one way or another. It is about carefully weighing the individual case against the existing laws (textualism), keeping an eye on the goal of an eternally stable nation, and balancing that goal against the current culture, making rulings that can hopefully start to nudge the culture towards evolving a society that can last for eternity.

Of course, whatever the direction the nudges go, they must be allowed by existing laws. Indeed, such rulings should not be designed to change the law; they should show judicial restraint, not judicial activism. Rather, rulings made by eternalist judges should be designed to nudge the culture and political climate, instead of the laws themselves.

This means that eternalists would not consider their votes (or judgment in the case of a single judge) to be their most important contribution; their written opinion is most important because they know that the public will using their opinion to gauge their position.

Now, I am sure that many critics of eternalism will protest that I have said nothing about the Constitution of the United States. Rest assured that eternalism respects the Constitution above all else. In fact, in my mind, eternalism is a mixture of textualism and originalism because we know that the overriding intent of the Founders was to build a republic that could last forever and guard the [natural rights][8] of its citizens for eternity. Eternalism just acknowledges that they may not have known exactly how to do it, though they were very close.

But I believe that applying this philosophy need not be restricted to the United States. I will use Norway for an example.

History tells us that when a government starts turning socialist, it will eventually fall, even if it works in the beginning. That’s usually because it becomes economically viable to not join the workforce, which will cause a lot of the population to eventually do just that. However, Norway does not seem to have that problem. Their culture includes a good work ethic, so despite the economic pressure, Norwegians seem to be staying in the workforce, so the socialist government works well.

An eternalist in Norway would not see the socialism as a problem, for now. However, an eternalist in Venezuela would. That’s the difference that culture makes.

And in a nutshell, that’s my philosophy of law.