Tag: Robert Bork

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The Problem with Natural Law Constitutionalism

Greg Weiner

Hadley Arkes has a characteristically compelling essay at the Wall Street Journal (paywall) arguing that judges should root their rulings in the enduring truths that precede and undergird the law. For example, he writes, an appeal to natural law can resolve the question of abortion on firmer ground than the traditional claim of conservative judges that the Constitution does not speak to the issue. It’s worth the read, as Arkes always is. But it is also problematic. I’ve argued against Arkes’ views more completely here. A couple of brief points are worth noting. One is the issue of authority, which is itself a moral issue … Continue reading The Problem with Natural Law Constitutionalism

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Constitutionalism and the Common Good

Greg Weiner

At National Review, Dan McLaughlin recently had a compelling takedown of the new push for “common good originalism.” That brand of originalism received a fuller explication yesterday in a joint statement at The American Mind from Hadley Arkes, Josh Hammer, Matthew Peterson and Garrett Snedeker. I’ll try to write about this in more detail in essay form, but the essential complaint against originalism is that it has failed to produce conservative policy ends. Originalism’s focus on text and intent rather than natural law earns its defenders the dreaded epithet of “positivist,” which is loosely, and wrongly, deployed as a synonym … Continue reading Constitutionalism and the Common Good