Courts

  • “Originalism Is Not Enough” — Hadley Arkes in Claremont Review of Books

    by James Wilson Institute on February 17, 2022
    In a review of Drakeman’s The Hollow Core of Constitutional Theory: Why We Need the Framers, Prof. Hadley Arkes contends that, when debating moral issues such as abortion and freedom of religion, judges should look beyond the text of the Constitution to the principles underpinning it. The Framers themselves disagreed on constitutional interpretation, and it’s […]
  • “On Overturning Roe” — Hadley Arkes in First Things

    by James Wilson Institute on February 15, 2022
    Comparing abortion to slavery, Hadley Arkes explains how conservative jurisprudence has obscured the central issue of abortion–the killing of small lives–by referring the decision to the States. Though popular, such traditional conservative reasoning fails to address what the States should do if Roe is overturned. Conservatives should go further. The Fourteenth Amendment expressly gives Congress […]
  • “The Smith Case, Religious Freedom, and Originalism” — Christopher Wolfe in Public Discourse

    by James Wilson Institute on February 10, 2022
    Responding to the Fulton decision, Christopher Wolfe argues that conservative judges who wish to uphold originalism should not overturn Smith. Some excerpts: “The Smith opinion was written by Justice Antonin Scalia, the greatest twentieth-century Supreme Court originalist—maybe the ‘re-founder’ of originalism on the Court. It is surprising, and perhaps ominous, that the newly ‘conservative’ Court in 2021 […]
  • “Waiting for Dobbs” — Hadley Arkes in The Catholic Thing

    by James Wilson Institute on February 9, 2022
    Professor Arkes anticipates what might happen if the Supreme Court seeks to take “the low door under the whole” in the Dobbs case—sustaining the law in Mississippi while affecting not to overrule Roe v. Wade. Some excerpts: “The odds are that the statute in Mississippi will be sustained by a Court now containing Amy Coney […]
  • “Recovering a Conservative State Legal Theory” — Jeffrey Bristol in Anchoring Truths and Law & Liberty

    by James Wilson Institute on January 28, 2022
    Responding to Holden Tanner and Jesse Merriam, Jeffrey Bristol argues that state courts limit themselves by adopting the same sort of originalism as federal courts–and that Erie, far from wrenching common law reasoning from the states, actually returned state courts to power.  Some excerpts: “It may seem surprising to say that originalism ignores state power. […]
  • “When ‘Matter’ Really Matters” — Jesse Merriam

    by James Wilson Institute on January 17, 2022
    Jesse Merriam argues that Engel and Schempp are here to stay because the “matter” of modern-day society has corrupted the “form” of American jurisprudence. Rather than attempting to overturn these cases, conservative legal scholars and judges should learn how to make Founding ideas work in the twenty-first century. Some excerpts: “Incorporation of the Establishment Clause…means […]
  • “States, Courts, and Common-Good Conservatism” — Holden Tanner

    by James Wilson Institute on January 3, 2022
    Holden Tanner continues his dialogue with Josh Hammer and Jesse Merriam, arguing that to reform American jurisprudence conservatives need a new synthesis of the natural law tradition and the Antifederalist vision of state power. Some excerpts: “Hammer is correct that abstract human reason alone cannot restore conservative jurisprudence—careful attention to our history and traditions as […]
  • “And All the Students Said, ‘Amen’” — Keisha Russell

    by James Wilson Institute on December 17, 2021
    Keisha Toni Russell, Counsel at First Liberty Institute, argues that young Americans learn to respect religious liberty–and individual rights more generally–when religion flourishes in public. Some excerpts: “In the early 1960s, the Supreme Court reviewed two cases involving voluntary school prayer and Bible reading. The cases, Engel v. Vitale (1962) and Abington Township School District v. Schempp (1963), contained […]
  • “A Common Call to Prayer” — Gunnar Gundersen

    by James Wilson Institute on December 6, 2021
    Continuing our symposium on school prayer, JWI Affiliated Scholar Gunnar Gundersen argues that the Establishment Clause gives federal judges no right to restrict religious activity in American public education. By forbidding school prayer, judges have encouraged a culture of relativism. Some excerpts: “Until recently, community prayer was not only non-controversial, but considered a necessary element […]
  • Takeaways from Oral Arguments in Dobbs- Hadley Arkes in First Things

    by James Wilson Institute on December 2, 2021
    After the Supreme Court heard oral arguments in the Dobbs v Jackson Woman’s Health Organization, JWI Founder and Director Hadley Arkes proffered his thoughts on what happened and what it means for pro-lifers. Some excerpts from the piece: “One side, we might say, was “morally challenged” or imbecilic, and the other side wasn’t sure just […]