The James Wilson Foundation on Natural Rights and the American Founding

“The Constitution and the Sources of Refuge”: Professor Hadley Arkes in The Catholic Thing

by James Wilson Institute on January 16, 2020
Courts, History, Politics

Writing for The Catholic Thing in the first of a two part series, JWI Founder and Director Hadley Arkes argues that conservative opponents of abortion should heed the lessons of Abraham Lincoln and the Republicans’ attempt to push back on the infamous Dred Scott decision. Lincoln chose to respect the outcome of Dred Scott as it concerned the two litigants in the case. However, Lincoln pushed back on the broader holding of the Court with subsequent executive actions, thereby asking the Court to reevaluate the principles the Court articulated in Dred Scott. Likewise, Arkes says, pro-life advocates should encourage the Court to look once more at Roe v. Wade by encouraging Congress and the executive to challenge the principles espoused in that case. Checks and balances are an intentional element of the Constitutional system.

Some quotations from the piece below:

“This was a refined argument, but as Lincoln sought to explain, it was the only tenable understanding that could be reconciled with the logical structure of the Constitution and the separation of powers.  As he would explain in his inaugural address, the decisions of the Supreme Court deserved ‘high respect and consideration in all parallel cases by all other departments of the Government.’ A mistaken decision by the Court could be better borne because it could be limited to the particular case at hand, and it may be overruled.”

“…some of us have been arguing for years that the same understanding should be applied to the matter of abortion.  The Reagan Administration could have respected the outcome of Roe v. Wade for the litigants in the case – and yet refused to allow the National Institutes of Health to use, in experiments, tissue drawn from babies killed in elective abortions.”

“But the fact that Congress can keep offering this ground of resistance is the telling sign that the rightness of abortion is still deeply denied, deeply contested.  And there is no need for us to rely on claims of mere “belief” as the ground of our refusal to fall into line. The hidden truth is that we find our refuge in the lingering authority of the political branches to stake out a moral position at odds with the declarations of the Supreme Court.”

You can read the full article here.

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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