Judicial Philosophy

In relation to the nomination of Justice Alito to the Supreme Court, allow me to set out my take on the law and what a proper Judicial Philosophy is. For too long, many in our society have taken the approach that if something is good or desirable, then it must be afforded Constitutional protection. On the flip side, if something is deemed bad or undesirable, it must be found to violate the Constitution. Proper Constitutional interpretation, however, is not quite so broad.

If Congress or a State Legislature passes a law that is not in conflict with the clear language of the Constitution as it was originally intended, then that law should be upheld. It is not the place of a Judge to decide whether a law is a "good" law or a "bad" law. If the law does not violate the Constitution, that law should be upheld, regardless of whatever bad consequences there might be. If the law violates the Constitution, the law must be struck down, regardless of whatever good it might create. It's really not that hard.

I remember having this debate in my Civil Liberties class in law school about the issue of Commercial Speech. I was the only one in the class who took the originalist approach. It was rather disheartening. My classmates actually assumed that because I felt that Commercial Speech did not fall within the protection of the First Amendment, I must not think it a good thing for people to have more information relating to commercial enterprise. Nothing could be further from the truth. I agree that more information flowing is better than less, but just because that information flow is good, does not mean that it rises to the level of Constitutional protection.

I know that my view isn't the easiest to grasp these days, but that's the result of decades in which people have had the wrong attitude about how the Constitution is to be applied.