Philosophy
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“On Overturning Roe” — Hadley Arkes in First Things
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 […] -
“Waiting for Dobbs” — Hadley Arkes in The Catholic Thing
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
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. […] -
“Common Good and Common Belief in the Common Law” — Timon Cline
Analyzing past Supreme Court decisions on religion and public health, Timon Cline argues that the best judges consider public opinion as they attempt to rule in favor of the common good. Some excerpts: “The simple conclusion to be drawn from Locke, Viemeister, and Cole is that cognizance of the common good is a matter of prudential governance and that […] -
“Corporations, Churches, Persons, and the Natural Law” — Robert Miller
Responding to Professor MacLeod, Robert Miller argues that the government should respect associations not because these associations themselves constitute “persons” with natural rights, but because the people involved have rights. Some excerpts: “Professor McLeod says that the question before us is ‘whether churches and other associations of people have an existence of their own, prior to their […] -
“Our Divided House: A Review of Charles Kesler’s Crisis of Two Constitutions” — Gerard V. Bradley
Gerard Bradley reviews Kesler’s Crisis of Two Constitutions, which argues for a “reborn American conservatism” with natural law principles and the Constitution at its center. Not only does our constitutional government presuppose a virtuous citizenry, but public virtue will last only if we uphold the morality of our constitution. Some excerpts: “Lincoln is a recurring […] -
“No Free Exercise for Aztecs—or Abortionists” — Jordan Ballor
Jordan Ballor argues that the right to religious liberty is not absolute, and that courts should refuse religious exemptions to those who violate natural law by practicing abortion in the name of religion. Some excerpts: “It is a perennial challenge to identify the proper limits to religious liberty in America and rightly apply these limits. […] -
“Churches: An Existence of Their Own” — Adam Macleod
Prof. Adam MacLeod argues that churches, corporate entities, and trusts exist independently of government recognition or contract, deriving their existence from the fundamental right to associate and to form private property institutions around certain ends. Some excerpts: “The question is whether churches and other associations of people have an existence of their own, prior to […] -
“Is it Time to Rethink the School Prayer Cases?” — Francis Beckwith
Prof. Francis Beckwith argues that the Supreme Court should overturn Engel and Schempp, which put religious people at a decided disadvantage, rather than establishing religious equality. Returning to the original understanding of the First Amendment would enable local governments to seek the common good. Some excerpts: “There was a time, not too long ago, when […] -
“Judge Pryor’s Friendly Fire” — Hadley Arkes at Law & Liberty
Prof. Arkes defends “A Better Originalism” against Judge William Pryor’s critique, arguing that the work of natural law doesn’t end with the Constitution: judges must continually consult natural law principles as they apply the law to individual circumstances. Some excerpts: “I’ve counted myself a friend of William Pryor since I encountered him years ago as […]