Traditionalism can and likely will make great strides in pushing our constitutional order back to self-government and the rule of law.
Law’s inherent conservatism is apparent in legal argument. A legal argument that asks a court to change existing law is bound to fail. The most persuasive arguments revolve around what already is and not what an advocate or anyone else thinks ought to be. When judges ultimately decide cases, they do so based on precedent, evidence of how ambiguous terms and doctrines have been interpreted in the past.
By contrast, legislation is progressive. That does not necessarily mean it is left-wing, but it is built on the premise that things are not as they should be. If the law identifies how things are, it can be the basis for legislation by identifying how our rules ought to change to accomplish various goals.
These different exercises of power correspond to the different ways each institution gains the authority and expertise to make pronouncements that will bind a political community. Supreme Court Justices are trained as lawyers and are appointed, not elected; their expertise synthesizes precedents into rules and doctrines, so they are vested with what the Constitution calls “the Judicial Power.” They lack the democratic authority and expertise to identify the public good and change the nation’s course. Legislators are “experts” in representing their constituents and fashioning compromises ratified by enough representatives to achieve consensus. They are vested with “all legislative power,” or the authority to advance the public welfare.
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Tal Fortgang is an adjunct fellow at the Manhattan Institute. He was a 2023 Sapir Fellow.
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