When Justice Comes Naturally

by John O. McGinnis

Wall Street Journal
August 27, 2010

At the confirmation hearing of Elena Kagan earlier this year, various senators made a point of saying that, when it came to picking justices for the Supreme Court, they wanted to vote for nominees who were in the "mainstream" of constitutional thinking. It is an admirable goal, but the mainstream is hard to navigate these days, in part because the shorelines are so distant. On one side, where Republicans generally reside, there is the jurisprudence of originalism, where the meaning of the Constitution is fixed by the meaning of the text at the moment of enactment. On the other, generally inhabited by Democrats, there is the idea of a living Constitution, where meaning is updated by evolving moral principles.

In Constitutional Illusions & Anchoring Truths, Hadley Arkes tries find a path between these two extremes. In particular, he wants to recapture the natural-law tradition that grounds any reading of the Constitution in moral truths. Like believers in a living Constitution, he thinks that interpretation must go beyond the text and be informed by moral principles. Like originalists, he believes in an unchanging Constitution, because natural law—the first principles of individual conduct and political legitimacy—is part of the immutable order of things.

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