Brad Masters (Brigham Young University – J. Reuben Clark Law School) has posted Reconciling Originalism with the Father of Conservatism: How Edmund Burke Answers the Disruption Dilemma in N.L.R.B. v. Canning (Brigham Young University Law Review, Vol. 2013, No. 4) on SSRN. Here is the abstract:
Recent scholarship argues that conservative and originalist jurisprudences contradict each other. In some cases, original, founding principles are invoked to overturn long-standing traditions. When that occurs, conservative values, such as respect for precedent, are challenged. The problem, as that scholarship points out, is that the same judges that espouse this disruptive originalism also claim to be conservative. As the polemic goes, good Burkean conservatives should reject originalism in favor of a precedent-based approach. This Comment challenges that scholarship by engaging in a more thorough analysis of Edmund Burke's philosophy. After a deep examination of Burke's thoughts on precedent and his doctrine of prescription, I argue that arguments pitting Burke against originalism go too far. Instead, Burke's attitude toward “canonized forefathers” leaves room for an approach that simultaneously respects precedent while drawing upon founding wisdom. I offer an articulation of this approach, which I call Burkean Originalism, in this Comment. Essentially, Burke would resolve these difficulties by investigating both founding wisdom and the established tradition. With a presumption in favor of precedent, Burke would only invalidate longstanding tradition when doing so is consistent with founding principles, reliably determined, and if the consequences are not substantial.
Posted at 6:53 AM