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10/05/2021

Ed Whelan versus Hadley Arkes on Originalism (Round 2)
Michael Ramsey

Continuing this discussion, Ed Whelan and Hadley Arkes have a further exchange at NRO on originalism and morality.

Hadley Arkes: A Response to Ed Whelan.  From the core of the argument:

The curious and unsettling thing here is that Ed Whelan has so evidently absorbed the moral skepticism that has fueled the conservative justices, the ones who preferred to invoke history and steer around the moral substance at the heart of these cases. If Whelan is to be taken literally here, he regards claims to moral reasoning as suspicious on their face precisely because he thinks they involve no more than an appeal to personal and subjective feelings. And so he says:

• that the duty of Supreme Court justices is not to indulge their own moral preferences in interpreting the Constitution.

•  [Arkes] thinks it proper for justices to impose their own moral readings on the Constitution.

In other words, moral judgments are merely expressions of personal feelings with no evident claim to truth. For if there were such truths, the judges would not be merely relying on “their own moral preferences” or “their own moral readings.” James Wilson and other Founders took as the first principle of moral and legal judgment: that it makes no sense to cast moral judgments of right and wrong on people who cannot control their own acts. And so we say that “we don’t hold people blameworthy or responsible for acts they were powerless to affect.” That anchoring axiom threads through many parts of our law, from the insanity defense to the case against racial discrimination. When a judge invokes this anchoring truth, would Whelan really say that he is indulging merely his “own preferences” or his “own readings”?

Ed Whelan: A Reply to Hadley Arkes on Originalism and Roe.  On the main point of disagreement:

Arkes’s main claim is that my position that Supreme Court justices should not indulge their own moral preferences in interpreting the Constitution means that I believe that “moral judgments are merely expressions of personal feelings with no evident claim to truth,” that I “deny[] that there are any moral truths for reason to discern.” His claim is, to borrow a phrase from Justice Scalia, pure applesauce.

My belief that the justices should not indulge their moral convictions in interpreting constitutional provisions does not turn at all on a “moral skepticism” that Arkes wrongly posits that I have “so evidently absorbed.” It turns instead on my belief that the role of a federal judge is distinct from that of a legislator. I believe firmly that there are “moral truths for reason to discern.” What I am skeptical of is Arkes’s ill-defined suggestion that such discernment properly plays a role in constitutional interpretation.

To illustrate the point: Either (A) the death penalty is never morally permissible, or (B) the death penalty is sometimes morally permissible. These are two mutually exclusive propositions, and one of them is certainly correct. I have formed my own belief on the matter. But I don’t think it’s consistent with originalist methodology for Supreme Court justices on either side of the moral question to rely on their moral convictions in deciding whether the death penalty violates the Constitution.

To restate my comment on the initial Whelan/Arkes exchange, I'm having difficulty understanding where the moral vision of the Constitution's framers fits into Professor Arkes' argument.  Suppose we now hold a "first principle of moral and legal judgment" -- as a matter of our own moral reasoning -- that was not shared by the framers.  In Arkes' approach, should that principle play a role in constitutional interpretation or not?  I find that he is not clear on his answer, though I suspect it to be the former.  If so, that's a plausible approach, but it's not originalism.