The conservative legal establishment needs to confront the issue of judicial supremacy. Bradley C. S. Watson discusses the criticisms made by Jesse Merriam regarding the current state of legal conservatism, particularly its focus on constitutional interpretation, which may not adequately protect the American legal and political order.
1. Focus on Originalism and Textualism: Legal conservatives have become overly fixated on constitutional interpretation theories such as originalism and textualism. They mistakenly celebrate when progressive justices adopt these terms, failing to recognize that these concepts are often used to advance progressive agendas.
2. Failures of Originalism: Originalism is ineffective as a sole tool for conservatives because it does not provide enough legal framework to challenge non-originalist decisions or to protect individual and state rights against the civil rights regime.
3. Civil Rights and Religious Liberty: Current interpretations of civil rights law and religious liberty often create narrow exceptions and reinforce a perception of separation between church and state that limits the application of the First Amendment.
4. Need for Moral Framework: Merriam emphasizes the importance of developing a constitutional morality that serves shared societal and moral goals rather than merely serving as a technical legal practice. The authors argue that judges selected should possess this moral awareness.
5. Judicial Nominations: Merriam stresses that the process of judicial nominations is critical for achieving this cultural shift, advocating for judges who will promote a sense of "civilizational stewardship" in their rulings.
6. Limits of Judicial Solutions: There is skepticism regarding whether the judicial system can effectively address deeper societal issues that involve moral questions. The focus on judicial appointments might actually reinforce existing legal structures that conservatives find problematic.
7. Judicial Supremacy vs. Political Will: The real issue is not the conservative legal movement itself but the problem of judicial supremacy, which undermines the ability of political leaders and the people to have legitimate influence over constitutional interpretation.
8. Historical Context of Judging: The notion of originalism is rooted in practices dating back to Blackstone's time but has been politicized in contemporary discussions. Judges’ interpretations of the law are not the same as forming a political agenda.
9. Rejecting Passive Legal Culture: Legal conservatism is critiqued for being too passive in addressing crucial issues and for relying too heavily on the judiciary, which detracts from the necessary political engagement required to reshape jurisprudence effectively.
10. Call for Radical Change: Watson argues that what is needed is a radical approach—shock therapy—to address the legal system’s failures rather than just reforms from within the existing legal establishment.
The conservative legal movement is in a critical state, facing a need to re-evaluate its strategies in light of judicial supremacy and societal needs. Watson calls for a more aggressive approach to reform that prioritizes civilizational values over narrow legal interpretations, advocating for an awakening of political will to reclaim constitutional governance from an overreaching judiciary.
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