The James Wilson Foundation on Natural Rights and the American Founding

“Conservative Jurisprudence Without Truth”: Prof. Hadley Arkes in First Things

In First Things, JWI founder and director Prof. Hadley Arkes criticizes conservative commentators who have taken greater issue with the legal methodology in Justice Neil Gorsuch’s Bostock v. Clayton County opinion than with the fundamental moral claims the decision makes. At the core of the opinion, Prof. Arkes claims, is a fundamental rejection of human nature that is in tension with the moral framework of the Constitution. Just as slavery and racial discrimination were incompatible with the moral assumptions made in the Declaration and undergirding the Constitution, the implicit denial of a static human nature in Bostock rebels against a proper moral understanding of the American Founding. This, and not debates about originalism or textualism, should be primarily animating the conservative response to the decision.

Some quotes from the piece:

“This is the difference that a truth makes when it is brought into the mix. Whatever Gorsuch really understands about “biological sex,” there is no way that his opinion then confirms the abiding truth of those differences in nature that separate males and females. It is that truth that forms the stumbling block.”

“…that very question about the meaning of a “human being” could not possibly be an open question in this regime.  It was not a question waiting to be settled in the political process, through the votes of a majority or the declaration of someone in brief office. It had long ago been settled and explained by Aristotle: There is only one kind of creature fitted by nature for the life of the polis, the political order, that association marked by the presence of law.”

“This American Constitution was not made to license the private killings of 800,000 unborn children each year, at the order of their natural parents. And it was surely never meant to house the denial of that nature that distinguishes mothers from fathers, brothers from sisters, and secures the ground of all of the rights that flow from nature. “

Read the whole piece 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