Four Philosophies of Interpretation

This is continuing on a theme from the previous post (EDIT: two previous; I made a different post in the interim), which was tangential to the argument of that post but which I think is genuinely interesting. Namely, what is the proper constructional attitude to take toward the Constitution's grants of power and its declarations of rights? Or more to the point, what philosophy is desirable toward a constitution's grants of power and declarations of rights? That is to say, independent of what any of us might admit about what the clear text of the Constitution actually requires, how would we like to go about interpreting these two kinds of constitutional clauses? I think there are four basic philosophies in this realm, which I will call the liberal, conservative, libertarian, and populist philosophies.

Basically, these four philosophies are a combinatorial combination of two possible interpretive philosophies, broad and narrow, with two kinds of Constitution provisions, powers and rights. Liberals favor a broad construction of both; conservatives favor a narrow construction of both; libertarians wish to construe powers narrowly and rights broadly; and populists wish to construe powers broadly and rights narrowly.
The liberal philosophy, which happens to be my philosophy, works like this: a grant of power to the government is presumptively a grant to do something which is considered good. The protection of a right, i.e. the prohibition of a certain use of government power that would otherwise be legitimate, is presumptively a prohibition of doing something which is considered bad. This being the case, it makes a fairly large amount of sense to interpret things that grant the power to do good things broadly, and also to interpret things that protect against the government's doing bad things broadly. Thus, broad rights, broad powers.

The libertarian philosophy is pretty simple, and starts from a very simple premise: government is bad. Maybe unavoidable to some degree, but it's a necessary evil and shouldn't be encouraged. In this worldview, well, all powers provisions are grants of government power, and therefore at best a necessary evil. And all rights provisions are restrictions on government power--yippee!!! So naturally we want to construe powers narrowly and rights broadly, the philosophy that minimizes government power. (Note that libertarians ought to love the Ninth Amendment, with its promise of sweeping individual rights.)

My use of the word "populist" to describe the next philosophy is deliberately generous to them. I could have called it things like "authoritarian," "statist," or "fascist." But I didn't; I called it populist, and with good reason: in a genuine democracy, you can make a good case for this mode of interpretation that is not evil/authoritarian/statist/fascist. It goes like this: in a democracy, the government is the People, government power is the People's power, and therefore all government power is presumptively good. Moreover, since the government is the people, why would it ever do something injurious to the people, and therefore why do we need rights provisions? Accordingly, say the populists, in a democracy we should interpret powers broadly and rights narrowly, and trust that the democratic process will take care of everything.

(I need hardly point out how naive I think that philosophy is, or how easily distorted into proper authoritarianism it is.)

The final philosophy is the conservative philosophy, that of construing government powers narrowly and individual rights narrowly. I confess that I honestly don't get the fundamental philosophical underpinning here. I get the argument for libertarian or populist philosophies, but I just don't see how you get to this view. "For the government to do things similar to those we've given it the power to do is bad, but for it to do things similar to those we've explicitly told it not to do is fine." It doesn't make sense to me. I think that the conservative philosophy usually tries to patch itself together out of the libertarian and populist philosophies; that is, they talk like a libertarian about the evils of government when discussing powers and they talk like a populist about the deference due a democratic legislature when discussing rights. But those are fundamentally inconsistent philosophies; you can't pick and choose!

Now, in the United States specifically they have a bit of a philosophical argument to fall back on, the idea of originalism. They first try to argue that a Constitution's meaning must be fixed through time and second that we have consistently moved toward broader interpretations of both rights and powers through our history; by the first premise, such movement was wrong, and should now be undone. That's at least an argument. But what I don't get is why we should want a Constitution construed along these principles. If their argument as to the positive U.S. Constitution is correct, it's correct (though I obviously don't think it is), and one would have to take the consequences, excepting a possible amendment. But why on earth is this a desirable state of affairs?

And if the Framers truly did straitjacket us into a framework that forces an excessively narrow construction of both rights and powers than is appropriate today, mightn't it be time to re-evaluate their supposed genius? Indeed, one of the things that I've always heard was part of their genius was the intentional decision (original intent, that is!) to make the Constitution's language general enough that it would naturally adapt to future circumstances; they had in mind making a government that would thrive in perpetuity. Scalia likes to talk about how we can't just pick the rule of construction that we like, but why not, exactly? As Jefferson said, the earth belongs in usufruct to the living, and if the practicalities prevent us from following his actual suggestion on that principle, periodically expiring constitutions, why not let each generation choose the interpretation of the Constitution that suits it, so far as the text of the document will bear?

Perhaps I'm wrong, and there is a coherent philosophy behind conservative judicialism. What I suspect is really that the people pushing it simply disagree with the statement of Good in the Constitution. That document states that government regulation of large-scale commerce is Good. And taxes and spending in the general interest are Good. And restrictions on freedom of expression are Bad. And impingements on the rights of the accused are Bad. And so are denials of equal protection of the laws. Or cruel and unusual punishments. My guess is that the people who push conservative judicialism tend by and large to disagree with these statements of value. They do not think that government regulation of large-scale commerce is good, probably in large part because they wish to participate in the profits of large-scale businesses in a world where they are the supreme power center. They do not think that the various individual liberties enshrined in the Constitution in various places are good. Etc., etc., although those are the main two. In other words, those who preach originalism may in fact be betraying a kind of contempt for, or at least profound disagreement with, those values that are actually by law fundamental to our nation.

Just a thought.