« Joel Alicea: Liberalism and Disagreement in American Constitutional Theory [Updated]
Michael Ramsey
| Main | Cary Franklin: Living Textualism
Michael Ramsey »

06/04/2021

Greg Weiner on "A Better Originalism"
Michael Ramsey

At Law & Liberty, Greg Weiner (Assumption University -- Political Science):  Why Would We Expect Philosopher-Judges? From the introduction: 

The manifesto for “A Better Originalism” grounded in transcendent moral truths and a teleological conception of the regime has been ably critiqued and ably defended in this space. But these critiques have pertained largely to the question of judicial authority. The question of power—its nature, its tendency to growth, and how people who wield it tend to behave—requires attention as well.

One hesitates to accuse the authors of “A Better Originalism” of error, but they must contend with at least the possibility of two. One is the latent premise that constitutional issues are, by definition, judicial issues. That is, the authors seek a different kind of constitutional interpretation, and they direct their missive to judges. Why not to legislators? Or to citizens? More on this presently.

The second error is the assumption that the kind of judge they seek is a) available in considerable numbers and b) likely to remain that kind of judge when invested with power—especially power of the kind the authors describe. Yet somehow “A Better Originalism” illustrates the possibility for a different kind of judge by noting the persistence of the wrong kind of judge. One is Justice Neil Gorsuch, whose decision in the Bostock case they take as proof that conservative jurisprudence has gone off the rails. Might the persistence of bad judges, or judging, call into doubt the thesis that we should rely on judges in the first place?

Judges should judge well, but they are not suited to be moral guardians of the regime. American law school curricula do not prepare future judges to ascertain the moral truths beneath the law. They train them to practice law. If there was ever a judge who broke this mold and held out hope for the kind of jurisprudence “A Better Originalism” seeks, surely it was Gorsuch, who studied natural law with John Finnis.

But the problem runs deeper than judges who are unsuited to the task “A Better Originalism” would assign them. Judges so tasked would be powerful. And one moral truth that transcends and undergirds the American regime is that, as Federalist 48 explains, “power is of an encroaching nature.” Put otherwise: If a man or woman is anointed to identify the moral ends of the regime and to issue rulings imposing them, how might we expect such a person to behave? With humility and restraint? Or with arrogance and error?

One might say that conventional originalism is subject, at least in part, to this critique as well -- in particular, whether "the kind of judge [originalists] seek is a) available in considerable numbers and b) likely to remain that kind of judge when invested with power."