Hadley Arkes Subscribe
Mr. Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst and the Founder and Director of the James Wilson Institute on Natural Rights and the American Founding.
adobe.comThe Shell Game of “Tiers of Scrutiny”— Exposed, Once and for All
We have absorbed over the last few weeks the burst of anger on the part of pro-lifers and conservatives over the Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt.
Who’s Afraid of “Substantive Due Process”?
My good friend Matthew Franck has turned his considerable wit to the task of gleaning the meaning of due process from the history of our jurisprudence, English and American. And the account he published recently in American Political Thought—entitled “What Happened to the Due Process Clause in the Dred Scott Case? The Continuing Confusion over ‘Substance’ versus ‘Process’”[1]—must surely stand as one of the most searching and thoughtful in recent memory.
The lawyers and writers most concerned about “substantive due process” have also been the most reserved about natural law and natural rights. They have regarded as a high judicial offense the willingness of judges to import into their decisions notions of rights, or natural justice, that are not contained in the text of the Constitution. They tend to hold fiercely to a law composed of “procedures,” and to the strict terms of the positive law.
But as the question is opened to a closer, more probing view—and opened by Franck’s piece—I think it becomes all the clearer that the difference between “substantive” and “procedural” due process fades away: that the issue simply cannot claim the moral import that has been attached to it, or be as portentous in our constitutional law as the critics of “substantive due process” have long thought it to be.
Victory in Spite of Ourselves
David Cortman showed remarkable poise and command last January when he made his first appearance before the Supreme Court. The case was Reed v. Gilbert, and he represented the cause of a small, fledgling church having no fixed site for its services. His masterful performance was recognized this week: victory, with a box score of 9 to 0. Cortman brought to the aid of this small congregation all of the dedication and resources of the Alliance Defending Freedom.
What “Liberties” Does the Constitution Protect?
In response to: How Constitutional Originalism Promotes Liberty
In his famous, breakthrough speech at the Cooper Union in New York, Lincoln remarked on those black slaves who had not thrown in with John Brown. Even though, as he said, they were “ignorant”—even though they had no formal education—they had the wit to see that the schemes of this crazy white man would not conduce to their own wellbeing. They were not book-learned, and yet they were, in Madison’s phrase “moral agents”: they had the capacity to think seriously about their own wellbeing—and the wellbeing of others—and for that reason they did not deserve to be annexed to the…
More Responses
Ilya Somin’s thesis in his Liberty Forum essay is modest and hedged. Confining himself to “the circumstances of the United States for the foreseeable future,” he argues only that, among the “plausible competitors,” originalism is “likely to be” the theory of constitutional interpretation that best protects the components of “ ‘negative’ liberty defended by most…
The point of Ilya Somin's able and humane Liberty Forum essay is to show libertarians how to deploy originalism as a doctrine to maximize “negative liberty” in America. He doesn’t claim to establish that negative liberty is good, or that its maximization accords with living in the truth or with dignity. It’s enough to say…
I would like to start by thanking Law and Liberty for hosting this symposium, and Hadley Arkes, Peter Lawler, and Ed Whelan for their thoughtful comments on my initial essay. I had planned to complete this reply much earlier. But just as constitutional originalism sometimes has difficulty taking account of new developments, so my original…
The Whip and the Sting of the Law
Statua di Machiavelli, Galleria degli Uffizi a Firenze.Richard Reinsch's post “Return to the Barbaric” leads me to think that there is indeed something different about the use of the executive power in the Obama Administration, though FDR set a new model–closing the banks and barring people from access to their savings, on the strength of nothing but the Trading with the Enemy Act of 1917. FDR also traded destroyers for naval bases, when his Attorney General, Robert Jackson, told him that those destroyers were not his property to sell or trade. But as Reinsch and others have said, cashiering the president of GM, rewriting the law on Obamacare,…
Town of Greece: Springtime for Atheists—and Us All
Then Professor, now Judge Stephanos Bibas giving a lecture at The King's College in New York City, September 29, 2016 (Image: The King's College).
In May some of us were waiting, with apprehension and hope, for the outcome in the Hobby Lobby case; but we were lifted with relief–and with an unexpected delight—by the Supreme Court’s decision in Town of Greece v. Galloway. We would have been grateful if the Court had been willing to do no more than sustain the practice of having invocations to God as the prelude to the town meeting in this small town in New York. As Justice Kennedy noted, the First Congress had moved to appoint chaplains only days after approving the language for the First Amendment. To pronounce those prayers as illegitimate now under the Establishment Clause would have marked a telling moment in driving religion entirely out of the public square. But instead of settling the case on that ground, the Court did far more: Justice Kennedy made it clear that these prayers did not have to be watered down to something so generic, so purged of the possibilities of offending, that they would be scrubbed of any identifiable religious character. They did not have to be submerged in vague “non-sectarian” prayers offered merely to the “divine,” whether that was the God of the Bible or “forces in the universe.”
Post-Hobby Lobby Illusions
Then Professor, now Judge Stephanos Bibas giving a lecture at The King's College in New York City, September 29, 2016 (Image: The King's College).
My late leader of days long gone, the first Mayor Daley of Chicago, once poured out his heart about life in the political arena: “I have been vilified, I have been crucified, I have been ….criticized!” Well, I haven’t been vilified or crucified, but I have been criticized vigorously for my writings in this space on the reasoning in the Hobby Lobby case, and criticized by a long-time friend, the Editor of the Public Discourse, Ryan Anderson. My response reveals his critique, while at the same time it may sharpen and deepen the argument.
The New Jurisprudence of ‘Beliefspeak’
Then Professor, now Judge Stephanos Bibas giving a lecture at The King's College in New York City, September 29, 2016 (Image: The King's College).
Count me as a part of that population that rejoiced over the outcome in the Hobby Lobby case. It was a relief that the Green family, owners of the Hobby Lobby craft stores, and the Hahns, owners of Conestoga Wood Specialties, were delivered from the mandates of Obamacare; the mandates that compelled these families to cover abortifacients in the medical care they funded so generously for their employees. Justice Alito also did a notable service in making clear that a “corporation” is an association of “human persons”: Every association is directed to a purpose; and there is no principle that determines that this kind of corporation, alone among all other associations, may not be committed to moral and religious purposes, apart from the making of money.
Blowback Conservatism
Then Professor, now Judge Stephanos Bibas giving a lecture at The King's College in New York City, September 29, 2016 (Image: The King's College).
I’ve been traveling today, driving from Amherst back to Washington, and so I’m catching up with some of the comments drawn by the piece on Commencements and the bizarre implication that springs from the judgment of the Court in Lee v. Weisman. I want to thank Carl Scott for his stirring words on Natural Rights & the Right to Choose. But on this matter of whether I would try to make use of the lever revealed in this case, he has me wrong on one critical point: I’m always in favor of the conservatives making use of the ‘principles’ laid down by the Left in order to show how those principles would work quite forcefully against them. The Left persistently fails to live by the rules or principles it lays down for others, and so the only way of making them back away is to use the precedents they set in ways that they’ll find quite jarring.
