Jesse Merriam responds to Holden Tanner and Josh Hammer, arguing that state courts matter not merely because they strengthen conservative power in the federal courts, but because states are the most basic guardians of liberty.
“A successful socio-legal movement must engage within rather than push against the prevailing cultural norms. The NAACP, for example, was acutely aware of nation-wide repugnance toward racial mixing, which is why the organization began its litigation campaign in the domain of property law, far from the realm of the most controversial areas of racial integration—namely, interracial marriage and K-12 public education. Lambda Legal was similarly aware of the societal distaste for normalizing homosexuality, which is why the organization began its litigation strategy dealing with matters of bodily autonomy and public accommodations, far from the realm of same-sex marriage. Legal liberals, in other words, had the discipline to litigate strategically and to operate within the confines of the social facts of American culture.”
“Any effort to restore a natural law jurisprudence must come to grips with our social facts—namely, that we inhabit a nation in the midst of an unprecedented decline in church membership, a nation that is the world’s biggest pornography peddler, and a nation that leads the world in the rate of single-parent households. These conditions all must change before any effort to restore natural law can get off the ground.”
“The centralizing jurisprudence that Hammer would like to restore in overruling Erie is precisely what made Everson and Engel possible. And it is precisely what made Everson and Engel wrong.”
“It made political sense for the party of urban wealth in the 19th century to enlarge federal common law and thereby empower the federal judiciary, the institution over which they exercised the most control. It does not make political sense for the Republicans of the 21st century to do that, for Republicans, as much as they may deny it, have power only outside of the nation’s urban and financial centers.”
“While there are substantial differences between Tanner’s and Hammer’s visions, they have one thing in common: They both view state courts as mere vehicles for the restoration of federal power. This inverts the Founding. The states abandoned the Articles of Confederation and created the U.S. Constitution for the limited purpose of giving the federal government power over two policy areas the states could not collectively handle—the regulation of inter-state commercial transactions and the protection of national security. The federal government was created as a limited enterprise to strengthen the states.”
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