In an essay as part of our ongoing collaboration with Law & Liberty, Eric Hageman, James Wilson Fellowship Class of ’16, adds his analysis of the current legal and judicial landscape to the current discussion that has been sparked by “A Better Originalism.” Hageman agrees that the current legal culture is rife with the “sophistry” and “sophomoric libertarianism” that guides legal conservatism. However, he argues that a “boring” judiciary, one that is better educated in the jurisprudence and wisdom of the Founders, and one that is committed to textual originalism, is the solution to our current crisis. Giving license for judges to rewrite the text in line with natural law principles, Hageman argues, will undermine the Republic itself.
Some excerpts from the piece:
“The real work of moral reasoning—the real work of jurisprudence—precedes any sort of interpretation. Instead, it comes with creation, i.e., with legislating. We can and should debate the moral qualities of our laws. And if they’re found wanting, we should change our laws and our jurisprudence. But that is the job of the writer, not the reader.”
“Professor Forte writes that that what is at stake here is the very Constitution. I would go further: it is the very right to govern ourselves. We are a republic, and we have delegated to certain offices the authority to enact laws. We have not given that authority to the federal judiciary. Originalism and textualism are the judiciary’s implementation of that principle. Without them, legislatures cannot enact laws that mean what they say. The irony is that a “moral originalism,” supplementing imperfect statutes with judicial reasoning, is pointedly immoral, the “grave scandal” Professor Forte warns against.”
“If we really are in a jurisprudential or political crisis, the answer lies among our laws’ authors: our legislators and, frankly, us, the people who elect them. Our failures have been aggravated by judges who think they know better, engaging in illegitimate lawmaking masquerading as textual interpretation. But the solution is not more illegitimate lawmaking.”