Merriam Responds on Originalism and Stare Decisis

The final response to my essay on integrating originalism and stare decisis, by Professor Jesse Merriam (Patrick Henry College), is up. I will have a reply to all three of my respondents in a few days. A bit from the end of Professor Merriam’s piece:

Any effort to restore the American legal tradition must engage the fact that our constitutional order has been revolutionized through a vast array of “individual liberty” decisions. As Bruce Frohnen describes this shift, the Supreme Court’s Fourteenth Amendment jurisprudence has transformed American constitutional law from a mediating order (i.e., a constitutional order that “mediates among more primary social groups and institutions”) into a commanding order (i.e., a constitutional order that “shape[s] the conduct of individuals, groups, and political actors to produce a society that has a specific character”).

In accord with this commanding order, the federal judiciary has emancipated the individual from the strictures of the past, including the traditional institutions of family, church, and community. This has had the effect of also emancipating us from one another, thus denying the “social bond individualism” that Richard Weaver found to be a critical part of a stable liberal order. And our emancipation from the past has severed us from the world we are creating. Traditions, as Burke described them, create “a partnership” not only among the living, but also among “those who are dead, and those who are to be born.” For this reason, Burke concluded that a people “who never look backward to their ancestors . . . will not look forward to posterity.”

How ironic, then, that Chief Justice Roberts would invoke Burke in his June Medical opinion, a case that, in striking down restrictions on abortion clinics, reaffirmed the Roe line of cases creating a constitutional right to abortion—in other words, the right to be emancipated from one’s posterity. June Medical is wrong, not because it got stare decisis wrong (as DeGirolami alleges), but because it got the meaning of tradition—and the meaning of personhood—wrong.

None of this is to say that DeGirolami’s effort is not worthwhile. But it does seem out of tenor with our current predicament. The task for a traditionalist is not to find a place for originalism and stare decisis in the American legal landscape, but rather to find a place for tradition in a political and legal culture that exalts emancipation as the highest good.

Faced with this task, DeGirolami may find that preserving the American tradition does not simply mean picking up a legal thread. It may, instead, mean picking up the needle and starting a new one.

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