What could that be about? What else, the law.
Federal judge Kevin C. Newsom, a Trumpie appointee, has given fire to a smoldering debate in conservative legal circles with a speech at Harvard to a group of conservative law students and scholars.
In his speech Newsom pointedly criticized the Supreme Court, itself a rarity, and two SCOTUS decisions, New York State Rifle & Pistol Association v. Bruen and Dobbs v. Jackson Women's Health Organization, the one ruling unconstitutional state gun regulation, the other overruling Roe v Wade and the right to abortion.
Newsom's critique is that both cases exemplify jurisprudential "traditionalism" rather than originalism and textualism. Originalism and textualism are the gold standard of conservative legal thinking. Under it, the Constitution is not a living document whose meaning changes with the times but rather one whose provisions are welded to the time they were adopted and the words that were used at that time. A traditionalist approach however pours new wine into old casks by taking account of how the provisions have been applied since ratification. It makes the Constitution a document that lives but only in a subsequent past untethered to date and text.
Although Oliver Wendell Holmes, Jr. decried logic in the life of the law, there is logic, for what it is worth, in Newsom's critique. If the law is not to change with the times ("experience" to Holmes, by which he meant culture), then it should not change with the experience of the legal times since ratification. It should remain rooted to date of effect and language.
In Newsom's critique, traditionalism does violence to the sine qua non of judicial rule-making: predictability. Lawyers, law enforcers, business people and the common man need to know the rules of their society to engage in the behavior that makes their society work.
A valuable critique.
