I had the pleasure of attending Eleventh Circuit chief judge William H. Pryor’s recent presentation of the Joseph Story Distinguished Lecture at the Heritage Foundation. The Heritage Foundation has now posted the text of Judge Pryor’s excellent lecture, titled “Politics and the Rule of Law.” Here are some excerpts:
Fortunately, Ed Meese succeeded in persuading countless Americans, including judges, scholars, and lawyers, about the rightness of originalism, but our constitutional order faces renewed threats today—both from the left and from the right. Advocates on both ends of the political spectrum now champion previously discredited ideas for politicizing the law.
On the left, some threaten court-packing to secure a jurisprudence of liberal political results. On the right, some call for a jurisprudence of conservative political results— so-called common-good constitutionalism, common good originalism, or what I call living common goodism. These proposals threaten the rule of law—the linchpin of constitutionalism and the common good….
Recently, some academics and commentators have called for what they describe as “[a] truly conservative jurisprudence” to replace originalism. They contend that originalism entails a “hollow positivism” and produces “a denuded jurisprudence that solely relies on proceduralist bromides.” They propose that the “substantive ends” of a “naturally ordered[] common good…ought to imbue constitutional interpretation.” And they defend their position with “whataboutism” by saying that “the Left” has “ha[d] no problem in defining law in terms of moral purpose and the common good as they are pleased to define it.”
The proponents of living common goodism are wrong. Originalism is not a morally empty jurisprudence. And the Constitution gives federal judges no authority to fashion a jurisprudence of living common goodism to achieve conservative political results; indeed, fashioning that sort of jurisprudence would be lawless and contrary to natural law.