Responding to Bostock v. Clayton County, Hadley Arkes, Joshua Hammer, Matthew Peterson, and Garrett Snedeker appeal to conservatives for an originalism of moral substance and outline four common good-centric principles for legal interpretation.
We stand together to oppose the timid, positivist “Originalism” currently on offer, which ignores both our broader Anglo-American tradition and the influence of natural law on our nation’s founding. We propose a new consensus in its place—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. We are now in the midst of a crisis of a tottering regime, and we call on judges to act accordingly: as statesmen anchored in enduring principles, with skills of prudent judgment, not as technocrats focused entirely on the text, with no attention to the underlying principles that give meaning to that text.
If “conservative” judges refuse to adopt the sound and traditional jurisprudence outlined above, they effectively cede this role to their peers on the Left. And those colleagues have demonstrated for decades, across the generations, that they have no problem in defining law in terms of moral purpose and the common good as they are pleased to define it. This is a form of tyranny that cannot be countered or tamed if conservatives disarm themselves and forego the discipline of moral reasoning that must ever be a part of judging.
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