Holden Tanner argues for a new method of fighting legal realism: Encourage state courts to pursue originalism and to develop their common law traditions from principles of natural law.
“By brandishing the centrality of text, conservative jurists sought to constrict the aggrandizement of the New Deal Court and weed out the inventions of the Warren Court. But these victories track a collision course with our abiding philosophical enemy—legal realism. We tacitly accepted the core tenants of that modern heresy: that judges make law, that they do so purely on policy grounds, and that only written law can constrain them. Like a puzzle piece that no longer fit, we cast aside the common law tradition.”
“We have left unanswered the allegation that common law judges ‘make law,’ that there are no principled grounds for traditional legal reasoning. Either a legislature provides a text, or the judge is at sea. When the judge is freed from text, there is nothing out there but raw preference and judicial will. We demurred to these assertions to delegitimize living constitutionalism. The price we paid was our common law tradition—the organic connection between American jurisprudence and natural law.”
“If we wield only a federal originalism clad in the federal separation of powers, then we surrender every other battlefield in our nation’s legal landscape. Our myopic fixation on federal judicial review blinds us to the legal problems that bedevil every other court. State courts decide far more cases than federal courts. And common law subject matters such as tort, property, and contract pervade state court decisions, even when legislators have codified many common law standards. That’s not to mention our federal common law. The fight extends far beyond federal textualism.”
“There is another path, one paved with traditionalism, economics, constitutionalism, and moral reasoning. It leads to a holistic conservative jurisprudence. Along the way, legal conservatives will encounter pitfalls and obstacles: questions about the judicial role, the separation of powers, and morality. But arriving at a jurisprudence for the common good—not the meandering esoterica of legal elites—means starting back towards the right direction.”
“We should cast aside the anachronistic assertion that the Founders would strip judges of their ability to reason from morality on account of their tenure protections. Instead, federal judges should be equipped by their experience to handle the intricacies of legal reasoning. They are freed from of our election precisely because legal reasoning involves delicate application of complex but objective truths, not the raw channeling of democratic preference.”
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