In a symposium in collaboration with Law & Liberty, Josh Hammer responds to Holden Tanner, arguing that conservative judges should look to the Preamble for natural law principles, rather than relying on the unmoored authority of human reason. Such a strategy would better promote common-good originalism in a post-Christian age.
Edmund Burke on legal precedents: “They ought to be shewn; first, to be numerous and not scattered here and there;—secondly, concurrent and not contradictory and mutually destructive;—thirdly, to be made in good and constitutional times;—fourthly, not to be made to serve an occasion;—and fifthly, to be agreeable to the general tenor of legal principles, which overruled precedents, and were not to be overruled by them.”
“In taking a more pliant view of stare decisis and thus declining to conflate ad hoc common law adjudications with judge-made ‘law’ itself, as so many contemporary lawyers and judges mistakenly do, Burke appeals to many of the customary tools in the judicial repertoire: tradition, history, prudence, and so forth. But perhaps most relevant, for both Tanner’s purposes and my own, is Burke’s final enumerated appeal to ‘the general tenor of legal principles,’ which Burke viewed as so indispensable that they ‘overruled precedents, and were not to be overruled by them.’ Burke’s appeal here is for the jurist to use as a lodestar something greater than an ad hoc precedent, or even series of precedent; he is referring to the very corpus of the common law itself and its substantive antecedents, such as the Bible and attendant principles of Christian morality.”
“It is this rediscovery of a ‘general tenor of legal principles’ that Tanner hopes to see judicially implemented in non-constitutional and non-statutory cases, primarily at the state level—perhaps due to the sheer unlikelihood of ever overturning Erie Railroad v. Tompkins, the 1938 Supreme Court ruling studied by every first-year civil procedure student and which erroneously held there is no such thing as ‘federal general common law.’ I share Tanner’s desire for a restoration of a judicial emphasis on ascertaining and prudentially applying a ‘general tenor of legal principles,’ a notion which we can trace not merely to the English common law tradition, but also to the 17th-century jurist Hugo Grotius and the magnum opus of his intellectual successor Emerich de Vattel, The Law of Nations.”
“However, although I share Tanner’s desire, I foresee the actual operation of this restoration a little bit differently. And it is here where I see substantial overlap between Tanner’s call to arms and my own recent work, largely focused on constitutional and statutory interpretation, on what I call ‘common good originalism.‘”
“Thus, rather than urging conservatives to ‘lead states to ground their common law reasoning in the natural law’ and its ultimate undergird of untrammeled ‘human reason,’ as Tanner suggests, we might alternatively urge such a common law restoration using the Preamble as a concrete touchstone. Such a touchstone is itself a direct link to the common law tradition and the common law tradition’s sundry underlying precepts, such as the Roman law, the Bible itself (even more so than the Roman law), and, indeed, a narrow conception of ‘reason’ directly downstream of those rich antecedent sources of such reasoning.”
“A common law restoration along these lines, centered at the state level (at least while overturning Erie remains a mere pipe dream), shares a great deal in common with common good originalism, as I have formulated the theory. Both projects involve fealty to our Anglo-American tradition, are unabashedly rooted in underlying precepts of biblical morality and natural justice, and point toward a path forward for conservative jurisprudence and the legal conservative movement at large that is neither positivist nor imprudently unshackled and unmoored, amidst the depressing realities of today’s de-Christianized America. The telos of the American regime, encapsulating as it does the sagacity of the common law tradition, provides legal conservatives’ best path forward.”
Read the full piece here.