Once again I appreciate Michael Ramsey’s thoughtful comments as he extends the discussion of natural law and the Constitution. We will have the chance to move even further into this discussion when he joins us, in March in Washington, in our seminar for judges and professors under our new Claremont Center for the Jurisprudence of Natural Law. His added commentary here would indeed furnish more material for that discussion, but it may also bring signs that our differences are narrowing in the most revealing way. To take a line from a colleague of mine, it could be that we are, on some critical points, “in heated agreement.”
Professor Ramsey has posted the following response on the Originalism blog to Hadley Arkes’ earlier reply to Ramsey’s review of Constitutional Illusions and Anchoring Truths. Liberty Law Blog thought it would be of further interest to post this interesting discussion.
Without, I hope, unduly prolonging the discussion or repeating what I wrote earlier, here are a few further thoughts on the questions he puts directly to me.
It may be true that we must often look to background principles to understand the text – as Professor Arkes puts it, “the task of judging cases will persistently draw us back to those principles that were there before the text was made.” There remain (at least) two different ways to understand those principles – as the people who drafted and ratified the language in question understood them, or as we now think they are best understood. I don’t think these are the same, or collapse into one other.
I’m quite grateful to Michael Ramsey for his engagement with the arguments in my book, Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law. I appreciate, of course, his praise of the parts that alone, he says, would be “worth the purchase price of the book”—the parts on those landmark cases of Near v. Minnesota, the Pentagon Papers and the Snepp case—perhaps with the iconic case of Bob Jones University thrown in. But I’d record a special gratitude for a move of his that has become regrettably rare in the review of books: a willingness to cite extended…