Why Would We Expect Philosopher-Judges?

The manifesto for “A Better Originalism” grounded in transcendent moral truths and a teleological conception of the regime has been ably critiqued and ably defended in this space. But these critiques have pertained largely to the question of judicial authority. The question of power—its nature, its tendency to growth, and how people who wield it tend to behave—requires attention as well.

One hesitates to accuse the authors of “A Better Originalism” of error, but they must contend with at least the possibility of two. One is the latent premise that constitutional issues are, by definition, judicial issues. That is, the authors seek a different kind of constitutional interpretation, and they direct their missive to judges. Why not to legislators? Or to citizens? More on this presently.

Read Full Article »