Reading Law Forward

Book excerpt: In the current legal climate where “everyone is an originalist,” conventional wisdom suggests that judges merely find law, rather than make it. Orthodox common-law jurisprudence makes fidelity to the past the central goal and criterion. By contrast, the alternative approach, “reading the law forward”—what some call judicial pragmatism or consequentialism—is viewed as heretical. Rather than mount a theoretical defense of a forward-thinking jurisprudence, legal historian Peter Charles Hoffer offers an empirical study of how this approach to constitutional interpretation actually leads to better law. Reading Law Forward looks at seven judges who exemplify this alternative jurisprudence: John Marshall, Joseph Story, Lemuel Shaw, Louis D. Brandeis, Benjamin Cardozo, William O. Douglas, and Stephen G. Breyer. “In the hands of America’s leading judges, a jurisprudence of reading law forward enabled courts to respond to the challenges of changing conditions. It kept law fresh. It promoted and still promotes the growth of a democratic society,” Hoffer convincingly argues.