Hadley Arkes responds to Edward Whelan in the last of five pieces on Originalism and the rightful place of moral reasoning. Appeals to Scalia only reinforce the position of common-good originalists: that conservative judges have forgotten the objective moral truths which once governed American jurisprudence. (Links to the other four pieces, in order of publication, can be found here, here, here, and here.)
“I said the conservative judges have steered around the substance of the moral argument because they have lost their confidence that they really have hold of moral truths. And how does Ed counter that? In a string of lines he reduces moral truths to matters of feeling and subjective preferences. First, ‘that the duty of Supreme Court justices is not to indulge their own moral preferences in interpreting the Constitution.’ And second, ‘[Arkes] thinks it proper for justices to impose their own moral readings on the Constitution.’”
“In striking contrast, the American Founders could appeal to a number of anchoring moral truths and saw no reason why those truths should not be part of the reasoning of the judges as they sought to deal with cases. They are, after all, the standards that come into practical play as legislators or judges too deliberate about the things that are just or unjust. I offered in my critique, as just one example, the axiom that James Wilson, Thomas Reid and yes, Immanuel Kant took as the very ground of all moral and legal judgments: that it makes no sense to cast judgments of moral praise or blame on acts that people were powerless to affect.”
“The conservatives have taken the curious line that by engaging in moral reasoning ourselves, we are confirming the pretension of the liberals that moral reasoning is legitimate for judges. The hope apparently is that by foregoing the use of moral reasoning, we may embarrass the Left from surging ahead with its inventiveness. But as Herman Cain used to say, ‘How has that been working for us?’”
“But let me say once more for the record: I’ve come to know Ed Whelan well, and I don’t have the slightest doubt for a moment that he thinks—not merely believes—that there are moral truths that we readily grasp through our reason and common sense. Knowing Ed as I do, I would trust his moral reflexes on any matter of consequence. Our debate is really a more refined one: Is moral reasoning something that can be confined only to the political branches, or must it be legitimate and necessary for judges to engage in that reasoning, as it comes to them within the focus of cases? I have already shown in different places that Hamilton, Wilson, and Marshall sought to trace their judgments back to those anchoring moral truths that formed the ground of their judgments. And so my question to friends on the other side is: Why do you think that Hamilton, Marshall, and Wilson had it wrong? What do we know that they never had the wit to see? And why is it that those of us who take the side of Hamilton, Marshall, and Wilson are tagged, with high passion now, as the heretics?”
Read the full piece here.