The James Wilson Foundation on Natural Rights and the American Founding

“After Obergefell: A First Things Symposium”—A Response from Prof. Hadley Arkes

Charged with the questions both of how we should “respond to the ruling by the Supreme Court in Obergefell v. Hodges that there is a constitutional right to same-sex marriage,” and of “what’s next” in the wake of that decision, several contributors to First Things offered their responses to the queries above. Arguing that we should proceed in the vein of President Lincoln after the abominable Dred Scott decision, Prof. Arkes offers us his take on the path after Obergefell. Some excerpts:

“In the aftermath of the Dred Scott decision, Lincoln came forth with the most penetrating critique, and he proceeded to lead a national movement to counter and overturn that decision. He and his Congress would move through ordinary statutes, before raising the matter to the level of a constitutional amendment. All of these ingredients should be in place. Which is to say that it must start with the voice that rings out the depth of the wrong and summons the resistance—that ‘this shall not stand.'”

“But next, it is absolutely critical that Congress puts its hand in. And not merely with the proposal for a constitutional amendment, which cannot make it now out of Congress, but with a statute that tests the limits. There is a principle here running deep, which some of us have sought to restore on the matter of abortion: It is simply not compatible with the moral logic of the separation of powers that the Supreme Court can articulate new ‘rights’ under the Constitution, whether a right to abortion, or a right to same-sex marriage, and then assign to itself a monopoly of the legislative power in shaping that right. The judges should understand that they cannot keep sole control of what they’ve sprung upon the country.”

“Many of our friends have recoiled from that prospect [of a marriage amendment] out of a fear that such a Convention may not be confined to this subject — that it may produce novelties and harms unforeseen. But to them I would earnestly say: Wake up to the depth of the crisis before your eyes. And I beseech you earnestly to consider: What lurking dangers unforeseen could plausibly be worse than the dangers that are upon us right now, with the threat of destroying religious schools and churches, and remolding the moral understanding of everyone else, as the culture war is carried, with conviction undiminished, to its further reaches.”

Read the whole piece here.

Law and liberty cannot rationally become the objects of our love, unless they first become the objects of our knowledge.
— James Wilson, Lectures on Law, 1790