Society & Culture

  • “Once More Unto the Breach” — Hadley Arkes

    by James Wilson Institute on March 7, 2022
    In a response to Ed Whelan’s critique of “On Overturning Roe,” Prof. Arkes insists that the moral argument against Roe is the only logical one for judges who believe in the deep wrong of abortion. The pro-life cause rests on objective moral truths, not on value judgments, and as a result does not require judges […]
  • “Breaking the Sotomayor Mold” — Kody W. Cooper

    by James Wilson Institute on February 25, 2022
    Kody Cooper argues that a new justice in the mold of Sotomayor would fail to pass the “test of truth” when it comes to abortion, religious liberty, and takings. Some excerpts: “In the wake of Justice Breyer’s retirement announcement, Democrats are divided over whether President Biden should appoint a more conciliatory ‘bridge-builder’ who will look for opportunities […]
  • “Justice Byron White and Abortion” — Hadley Arkes in The Catholic Thing

    by James Wilson Institute on February 24, 2022
    Responding to Richard Doerflinger’s critique of “Waiting for Dobbs,” Prof. Arkes asserts that conservative justices could successfully outlaw most abortions by returning to Justice White’s standard: only abort to save the mother’s life. At the same time, however, White did the pro-life cause a lasting disservice by focusing not on the rights of unborn babies […]
  • “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 […]