Originalism Is Not Enough

The Founding Fathers held certain truths to be "self-evident." Do we?

In this profoundly important reassessment of constitutional interpretation, the eminent legal philosopher Hadley Arkes argues that "originalism" alone is an inadequate answer to the judicial activism of the left. Without recourse to "mere Natural Law"—the moral principles knowable by all—our legal and constitutional system is doomed to incoherence.

With the demise of Roe v. Wade, conservatives savored a landmark victory in the long campaign to reclaim the courts. But on questions as momentous as marriage, equality under the law, and "transgenderism," our judicial system is still arrayed against them. Why aren’t
they winning?

The answer, says Arkes, is that conservatives have missed the forest for the trees. For fifty years, they have emphasized originalism, a fine tactic but a terrible strategy for saving the rule of law.

When liberals "discovered" hitherto-unknown rights in the emanations and penumbras of a "living constitution," conservatives retreated to the text. But the men who framed and ratified the Constitution never meant to confine our rights to its words. They fought a revolution to vindicate "self-evident" moral truths about human nature and the preexisting rights given to us by "Nature and Nature’s God." Until we rediscover Natural Law, nothing will stop the imposition of a perverse moral vision on our institutions and our lives.

Brilliant in its analysis, essential in its argument, Mere Natural Law is a must read for everyone who cares about the Constitution, morality, and the rule of law.