In an essay for Law & Liberty, James Wilson Institute Founder and Director Prof. Hadley Arkes defends JWI’s recent call in The American Mind for judges to adopt an “originalism of moral substance” against criticism by John Grove. Prof. Arkes argues that Grove misconstrues the nature of moral truths and their role in adjudication, which leads him to misread the original piece. Grove argues that judges cannot know moral truths, as a result of which it is dangerous for them to draw upon axioms outside the text of the Constitution in deciding cases. But he overlooks that the Constitution is premised upon the existence of clear moral absolutes, which “persistently supplied the ground of (the Founders’) most practical judgments.”
Some excerpts from the piece:
“Mr. Grove claims to have found in our essay a move to break from those wholesome restraints of the Constitution. But no: those institutional restraints are bound up with rigorous test of reasoning that is central to the moral understanding of the law. Those institutional checks put up an array of interests to challenge arguments and induce people to offer better reasons for the measures they would impose as law. Mr. Grove seems to be assuming that any government taking seriously the moral grounds of the law will be driven to do more and more in search of a world stripped of all imperfection. But the truth is the reverse: We insist on a more demanding test of reason before any measure can be imposed as ‘law.'”
“As the Founders understood, those anchoring moral truths they drew upon were there before the Constitution, and those truths would inform all of the procedures that would spring from the very logic of this regime of law. If we tried to sum up, then, the differences between Mr. Grove and the writers of ‘A Better Originalism,’ they are marked in this way: We see the Constitution springing from moral principles that were there before the Constitution—as Locke would say, ‘antecedent’ to the positive law. As James Wilson said, we didn’t bring forth this Constitution in order to invent new rights ‘by a human establishment,’ but to secure and enlarge those rights we already had by nature.”
“The indelicate point that runs through Mr. Grove’s essay, and informs each of his parts, is that he really does hold with my late, dear friend, Robert Bork that when a judge leaves the text of the Constitution he is merely looking inside himself. That is, there are no objective truths to command his judgment. … Grove cites, without reserve, Bork’s remark that when the judges appeal to moral truths outside the text, they are appealing merely to ‘their strongly held beliefs.’ Beliefs, not truths; beliefs merely ‘strongly held.’ With that inversion of the very meaning of moral judgment, all of Mr. Grove’s complaints would fall into place. But without that inversion, I’m afraid, not one of his criticisms can take hold.”
Read the full essay here.