Originalism Is Not Enough
In this profoundly important reassessment of constitutional interpretation, Mere Natural Law, the eminent legal philosopher Hadley Arkes argues that “originalism” alone is an inadequate answer to judicial activism. Untethered from “mere Natural Law”—the moral principles knowable by all—our legal and constitutional system is doomed to incoherence.
The framers of the Constitution regarded the “self-evident” truths of the Natural Law as foundational. And yet in our own time, both liberals and conservatives insist that we must interpret the Constitution while ignoring its foundation.
Making the case anew for Natural Law, Arkes finds it not in theories hovering in the clouds or in benign platitudes (“be generous,” “be selfless”). He draws us back, rather, to the ground of Natural Law as the American Founders understood it, the anchoring truths of common sense—truths grasped at once by the ordinary man, unburdened by theories imbibed in college and law school.
When liberals discovered hitherto unknown rights in the “emanations” and “penumbras” of a “living constitution,” conservatives responded with an “originalism” that refuses to venture beyond the bare text. But in framing that text, the Founders appealed to moral principles that were there before the Constitution and would be there even if there were no Constitution. An originalism that is detached from those anchor – ing principles has strayed far from the original meaning of the Constitution. It is powerless, moreover, to resist 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.
Reviews
“With his characteristics learning, wit, and insight, Hadley Arkes encourages us all to become naive again, to trust moral judgments available through common sense, reflection, and lived experience. In doing so, he recovers the authoring truths that are the moral ground of the American political and constitutional order.” ~ Daniel J. Mohoney, Senior Fellow at the Claremont Institute and author of The statesman as Thinker
With the grace, wit, and clarity of C.S. Lewis in Mere Christianity, Professor Hadley Arkes has laid out the path of moral reasoning that is inherent in any true understanding of the law.” ~ William C. Griesbach, U.S. District Judge for the Eastern District of Wisconsin
This book will start you down the path to recovering the meaning of everything. ~ Larry P. Arnn, President of Hillsdale College
About the Author
Hadley Arkes, the Edward N. Ney Professor of Jurisprudence and American Institutions emeritus at Amherst College, is the founding director of the James Wilson Institute on Natural Rights and the American Founding. His previous books include First Things: An Inquiry into the First Principles of Morals and Justice and Natural Rights and the Right to Choose. He lives in Washington, D.C.
