The James Wilson Foundation on Natural Rights and the American Founding

“Here’s The Only Path Open to Republicans After Neil Gorsuch’s Betrayal”: Prof. Hadley Arkes in The Federalist

In his latest article for The Federalist, Prof. Hadley Arkes calls on Republicans to look to Abraham Lincoln for a response to the Supreme Court’s decision in Harris Funeral Homes v. EEOC. Following the infamous Dred Scott v. Sandford decision, Lincoln and congressional Republicans acknowledged that the Supreme Court had the authority to determine the outcome for the parties of the case. However, Lincoln rejected the idea that the principle behind the decision was binding on the President or Congress or that the decision prevented the other branches from taking action in opposition to it. According to Prof. Arkes, conservative Republicans ought to stop putting their faith in the courts to produce moral outcomes and instead take action through various political means, even when that action contravenes the position of the courts.

Some quotes from the article:

“[Harris Funeral Homes v. EEOC] may … have the benefit of jolting Republicans from their willingness to rely on the courts to do the heavy lifting, to make the arguments that the political branches lacked the nerve or the wit to make. “

“Justice Gorsuch opened a path for the political branches to resist when he pointed out that the Rost family, the plaintiffs in the case, never raised their claim under the Religious Freedom Restoration Act (RFRA).  Under that Act, the federal government should have used “the least restrictive means” of achieving resisting discrimination against the transgendered, when it came into conflict with deeply held religious view. And that statute on RFRA, said Gorsuch “might supersede” the commands of the Civil Rights Act on sexual discrimination. “

“…that is a beginning.  The Supreme Court offered a reading of the Civil Rights Acts, and the Congress may aptly come back now to assert, as it has in the past, that the ban on discrimination by “sex” would not threaten the existence of all-female colleges such as Smith and Wellesley.  In the same way Congress, could make it clear, as Gorsuch noted, that the decision in the Harris case may not apply to locker rooms or bathrooms or all-female teams.  In this way, the political branches may once again, as of old, start narrowing and challenging the decisions of the Court. “

The full article can be found 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