In a new article for The Objectivist Center‘s The New Individualist, David Mayer—a Constitutional scholar and Professor of Law and History at Capital University—sets out the criteria by which the next chief justice should be judged. Written before Chief Justice William Rehnquist’s death, Mayer lays out the legacy of the Rehnquist Court:
Although the Rehnquist Court has fallen short of a consistent application of originalist principles to constitutional law—and indeed has fallen far short of following anything like a true contextualist approach to the Constitution—it has, in many respects, reacted against the left-liberal judicial activism of its predecessors, the Warren and Burger Courts. In doing so, the Rehnquist Court has challenged both sides of the post-1937 “revolution” in constitutional law, beginning the process of restoring an older jurisprudence more faithful to the Constitution.
Mayer also sets out the path that the next Court should take in order to restore “the Constitution to its proper place in the American system of government.” Mayer writes:
Ideally, however, Bush will nominate someone who is not an ordinary conservative, in the mold of Rehnquist: someone who adheres to constitutional principles such as federalism out of mere devotion to American constitutional tradition. Rather, Bush ought to nominate someone who grounds his or her jurisprudence in something more objective: in originalism, rightly understood, or better yet, in a contextual understanding of the Constitution. In other words, the next chief justice of the Supreme Court ought to be someone capable of leading the Court in a principled reaction against the “New Deal Revolution” of 1937 and the damage it wrought on the Constitution as an effective limit on the powers of government, particularly the federal government.
Read the full article…