The James Wilson Foundation on Natural Rights and the American Founding

“Hadley Arkes Addresses the Moral Reticence of Judicial Conservatism”- Gerard Bradley in the National Catholic Register

by James Wilson Institute on May 17, 2023

In this article for the National Catholic Register, Prof. Gerard Bradley discusses the points made by Prof. Hadley Arkes in his new book Mere Natural Law. Prof. Bradley emphasizes how the current textualist strain of originalism, which predominates in the conservative legal ecosystem, has been ineffective at substantively countering the progressive moral framework, advancing no affirmative vision in its own right. He argues that while judicial conservatism did achieve victory over Roe, its failure to address certain issues while capitulating on others calls for its replacement with a jurisprudential philosophy rooted in the anchoring truths of Natural Law.

Below are a few excerpts. The full piece can be found here.

Mere Natural Law is the consummation of these efforts. In it, Arkes argues correctly that there is something deeply misguided in today’s judicial conservatism, namely, an abiding adversity to relying upon the natural law when deciding cases. The most telling example of this moral reticence is, ironically, the conservatives’ signature accomplishment. Of the Dobbs ruling, Arkes says:

‘Nowhere in this carefully crafted opinion … did the conservative majority pronounce any words on the wrongness of abortion.’ Justice Brett Kavanaugh insisted in his concurring opinion that the Constitution is ‘neither pro-life nor pro-choice.’

This moral reticence has touched off a roiling debate within the conservative legal movement. It is already a fissure. It could widen into a schism. The effects are beginning to be felt in courtrooms and in politics.”

“The conservatives’ remedy to bad moral philosophy was abstinence. They would eschew altogether avowed reliance upon the natural law in their decisions. This self-denial is obvious in Dobbs. It is also apparent in Obergefell, where the Court’s leading ‘originalist’ wrote a passionate dissent, which, Arkes points out, omitted any ‘substantive defense of marriage as … the union of one man and one woman.’ The Court has no useful understanding of public morality either.”

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