Newt's Proposals on the Courts, Cont.

Yesterday, George Will took Newt to task over his proposals on the courts (my first post on Newt's take is here).  Here is Will in his column, "Gingrich, the anti-conservative":

[Gingrich] says that the Founders considered the judiciary the “weakest” branch. Not exactly. Alexander Hamilton called the judiciary the “least dangerous” branch (Federalist 78) because, since it wields neither the sword nor the purse, its power resides solely in persuasive “judgment.” That, however, is not weakness but strength based on the public’s respect for public reasoning. Gingrich yearns to shatter that respect and trump such reasoning with raw political power, in the name of majoritarianism.

But Hamilton does say elsewhere in Federalist #78 that "the judiciary is beyond comparison the weakest of the three departments of power."  And the kicker:

Gingrich’s unsurprising descent into sinister radicalism — intimidation of courts — is redundant evidence that he is not merely the least conservative candidate, he is thoroughly anti-conservative. He disdains the central conservative virtue, prudence, and exemplifies progressivism’s defining attribute — impatience with impediments to the political branches’ wielding of untrammeled power. He exalts the will of the majority of the moment, at least as he, tribune of the vox populi, interprets it. 

While I do agree with Will on some of Gingrich's foibles (especially about the part on majoritarianism which too often ensnares conservative legal jurisprudence), I think Will, in his fury directed at Gingrich, overlooks something very important:  the basis for a proper conservative jurisprudence.  Steven Hayward sums this up perfectly when, in a post on Powerline, he stated that Will's critique "elides recognition of the proper ground of criticism of the contemporary jurisprudence (namely, that our judiciary has become wholly positivist and has abandoned any reasoning from the first principles of natural law and natural right)..."  This is what conservative jurisprudence has been missing ever since the "original intent" debates in 1985 between Edwin Meese III and Justice William Brennan:  a proper grounding on those principles antecedent to the Constitution itself, the natural law and natural rights principles of the Declaration of Independence.  Constantly talking about the ravages of judicial activism educates no one on what that activism actually is or, to say it another way, how to tell between activism and proper jurisprudence.  It is no wonder, then, that Democrats have lately been able to get away with accusing Republican appointees to the Supreme Court of judicial activism. 

I recommend reading this, this, this, and this for some further study.  Also, Edward Erler has some great extended essays on this topic here, here, and here.