Interpretation (in this blog take Interpretation to mean how one decides what the constitution, a given law, or a given contract means), as I have blogged on before can be done in several general ways. It is not necessarily the reading the document and deciphering the text contained in that document. For example, privacy.
In the Constitution there is no explicit right to privacy. Some people then would argue that there is no right to privacy. However, without explicitly referring to privacy the Constitution often defers to individual privacy it is safe to say privacy is an important but unwritten concern of those who wrote the constitution. Now, some of the most controversial bits of jurisprudence are based on privacy. Some will argue this is wrong because there is no explicit right to privacy and others will say the constitution is full of concrete examples of concern for privacy and then generalize from that point. Mr. Nagel believes this is NOT the problem.
According to Nagel the problem is
Mr. Nagel goes onto explain the power of precedent (aka stare decisis) and how precedent is not just one or two cases. In fact Mr. Nagel argues a fair number of controversial (and prominent) cases could be overturned and the courts would not be altered in any significant way. Mr. Nagel also points out how courts have come to see themselves as arbiters of legitimate (and the degree of legitimacy an interest may have) vs. Illegitimate government interest. Another consequence of lawyerly tendencies has (in Nagel's view) elevated the court to the predominant role in our government.
What then do we look for in a potential justice who properly understands the role of the courts?