Taking an honest look at today’s conservative jurisprudence, Josh Hammer calls for a return to the Bible, natural law, and the substantive precepts underpinning our constitutional order.
“A sober, empirical assessment of the past four decades paints an ambiguous picture of substantive conservative success in US courthouses. It is simply not obvious how many true doctrinal victories conservatives might be able to claim have emerged from the conservative legal movement’s credentialing pipeline. Some areas, such as gun rights, stand out. In other ‘culture war’ areas, such as religious liberty, we have played to a draw (though we cannot seem to go further). On foundational issues that helped galvanize the Federalist Society’s founders, such as abortion, legal conservatives have (to date) been famously unsuccessful. On even abstruse libertarian-centric issues, such as the administrative law bugaboo of ‘Chevron deference,’ the movement has not delivered.”
“By now, it should be obvious: spouting platitudes about the various stripes of liberal proceduralism is simply not enough. Given the current morass — and against the powerful upstream currents of condescension and scorn from those dutiful foot soldiers who would plead ‘Give us one more justice!’ — creative thinking is required from the younger generation of legal conservatives.”
“Structurally, curricular reform in the legal academy is desperately needed — legal education must be reoriented toward the Bible, natural and Roman law, and the other substantive precepts underpinning the English common-law tradition. And the libertarians must step aside. Now is not the time for libertinism and radical individualism, but for consolidation and communitarianism. The time is now for a political economy of ‘common good capitalism’ and its natural jurisprudential corollary, common-good originalism. Only by recovering the substantively informed, ‘morally thick,’ more nationalist jurisprudence of Alexander Hamilton, John Marshall and Joseph Story will we decisively right the ‘conservative legal movement’ ship, forestalling insidious future libertarian encroachment and delivering results for our fellow conservative ‘deplorables.'”
Read the full piece here.