porphyrogenitus“The same argument might be used against originalism: If some federal judges overturn long-standing precedents”
Such arguments are made by people who want free-floating reinterpretation when it favors them, though, and they invoke it selectively in order to protect certain precedents they like, but they never employ this themselves when it comes to innovative rulings. So when people make such arguments, we can reject them as mendacious doublethink.
“Therefore, federal judges ought to follow the principle of stare decisis, which at least guarantees stability – or so a supporter of the status quo might argue.”
See above – defenders of the statist quo do not, in fact, believe in following stare decisis as a matter of principle, but rather rhetorically as a whip against their opponents, in the same way they want to redefine “conservatism” in a way that favors them (“conservatism” becomes “defending the most recent changes imposed by progressivism”).
“I don’t claim that an optimal constitution would do so. If the positive law does not allow a court to hear a specific case”
Now, I don’t endorse legal positivism, but Platonic Guardianism just is what you’re arguing for here – that judges should set aside law, and even the stare decisis you invoked in the first half of this response, and substitute their own vision of justice, and this is the best sort of government and will produce – well what does it in fact produce? What it in fact produces is not libertarianism, but something closer to what we have now; judges serving as a plenary council of absolute power (absolute power to impose their own view of justice), such as in the case where the Federal Judge seized control of education in St. Louis (I believe it was), set tax rates and how education dollars would be spent and personally oversaw/superintended that school system on the grounds that it had previously been being conducted unjustly (in his view), because to do otherwise would be, he believed, to allow injustice and the only way to prevent injustice and guarantee his vision of justice was to take the power into his own hands, which is exactly what he did.
What you are sidestepping is that there are procedures by which justice ought to be pursued as well, how laws are made is something important, not just what the laws are, and you’re asserting that judicial fiat is the proper way to pursue justice, and that the constitution is best set aside or simply read as “those in governmental power Ought to do whatever they deem necessary to prevent injustice, even if it is ultra vires.” That this method the opposite of liberty should not be hard to see, for it is what is all around us.
To that end, it does prove the one thing I have always maintained is democracy’s main virtue, both when I was a typical Madison, Wisconsin Liberal, and when I was a typical conservative, and now: democracy does mean that people get the government they deserve. Note I did not say (and never have said) they get the government they want. Those are clean different things.