The James Wilson Foundation on Natural Rights and the American Founding

“The Supremes Ride the Spiral Down” — Prof. Hadley Arkes in Law & Liberty

In a recent essay published at Law & Liberty titled, “The Supremes Ride the Spiral Down,” Prof. Hadley Arkes laments the recent Supreme Court decision in Iancu v. Brunetti, in which the Court allowed a profane trademark for a streetwear company. Drawing on the great Scottish Enlightenment philosopher Thomas Reid, Prof. Arkes criticizes some justices for ruling against what their own “common sense” would suggest: that some speech can be reasonably judged vulgar or immoral. Jefferson and Adams read Reid with great respect. Our namesake James Wilson quoted Reid in the first case to elicit opinions from the new Supreme Court. Prof. Arkes proposes that reading a bit of Reid could have rescued the justices from unforced error in Iancu.

Some quotes from the piece:

” Virtually all of the justices writing separate opinions revealed their keen awareness of the further, corrosive damage in the culture that this decision was certain to license. Each one of them voiced the wish that Congress would replace the current law with a measure more narrowly focused to deal with vulgarity, obscenity, and lewdness. And yet, each one of them fell in line to strike down the law as it was, finding it too broadly phrased to cover things “immoral” and wrongful. So convinced they were that the law was too vague to be sustained that it somehow failed to count for them that the administrators applying the law applied it precisely as these justices would have wished.”

“We might imagine what Congress could do if it were asked to make more precise a statute that depended on terms such as “up” and “down.” I would suggest that this was essentially the problem that the justices, in Iancu, were asking the Congress to solve in this case, to deliver them from their moral perplexity.”

“But the deeper strength of the holding in Chaplinsky was that it relied on the common sense understandings that were accessible to ordinary people in their awareness of “ordinary language”—their awareness of how the words they heard and used were commonly understood. Human beings are by nature “moral agents” given to pronouncing judgments on matters of “right” and “wrong,” and so our common language will contain terms that carry the moral functions of praising and blaming, commending and condemning.”

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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