The James Wilson Foundation on Natural Rights and the American Founding

“A Better Originalism” – Arkes and Snedeker in The American Mind

A new statement of purpose published in The American Mind, written by Prof. Hadley Arkes, Garrett Snedeker, Joshua Hammer, and Matthew Peterson calls upon conservatives to adopt an originalism of moral substance.

The authors write:

“We are faced with a moment of political crisis. The Biden administration seeks to fundamentally transform the United States by eroding our constitutional order. It hardly overstates the matter to say that progressives intend to establish, in effect, a one-party state, through expelling conservatives from all institutions. By enforcing a scheme of “identity politics,” they intend to break the American people into tribes, set against each other by color, by race, and by “sexual orientation.”

“It will inevitably fall to federal judges to resist these challenges. In the wake of Justice Gorsuch’s decision in Bostock v. Clayton County, however, it is clear that we cannot rely upon Originalist justices to do so. The timid, positivist approach to Originalism that legal conservatives have advocated for decades has failed.

“In its place, we propose a new consensus—a bolder, more robust jurisprudence rooted in the principles and practices of American constitutionalism before the last century of liberalism began its attempt to remake America. America requires a new Originalism that embraces both our broader Anglo-American tradition and the influence of natural law on our nation’s founding.”

The authors post a caution to friends who would simply return to the States the most vexing matters in our law, inviting them merely to make “value judgments” on matters like the beginning of human life or the inescapable differences between males and females, as though there were no objective morals truths that judge has the wit to grasp and respect, along with everyone else. The authors point out the root cause of this weakness and argue for a solution that could save the conservative legal movement. They would call out the fallacy of suggesting that once a judge leaves the text of the Constitution, he is in a world of arrant subjectivism, as though there were no moral truths outside the text to guide and constrain his judgment. The authors would try to ward off that fallacy exposed by Lincoln: that our law cannot be understood as a scheme of process without substance, as though we were free to choose just anything—to choose slavery, or genocide—as long as we did it in a democratic way with the vote of a majority. This was, for Lincoln, the degradation of the democratic idea. Harkening back into the first page of Aristotle’s Politics, the authors remind that any act we could name could be directed to ends that are rightful and wrongful, salutary or harmful. The Founders understood that any use of freedom would be “licentious” when directed to a wrongful end. How could it be that the Constitution, this scheme of governance, could be brought forth with no understanding of the rightful ends, the wide public good, that it was meant to bring about?

Read the full statement 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