My friend @JRozansky has a spectacular essay in the new @NationalAffairs on intra-conservative debates over precedent and stare decisis, and what we can learn on the subject from Edmund Burke himself. nationalaffairs.com/publications/d…
@JRozansky @NationalAffairs "The mistake made by Chief Justice Roberts, and echoed throughout the legal academy, is to see Burkean jurisprudence as a kind of humble and dutiful application of a strict...stare decisis. Yet Burke understood judicial precedents not as lawmaking...but as evidence of the law."
"In contrast to the modern approach...Burke believed a precedent should be followed only if it can prove itself to be good evidence of the law. Burke is therefore even less friendly to precedent as such than is Justice Thomas."
ICYMI and as a natural companion to Jeremy’s essay, here is my essay from the last issue of @NationalAffairs on Justice Thomas and the constitutionality of stare decisis in constitutional interpretation. nationalaffairs.com/publications/d…
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