About Right Reason

Right Reason is a journal dedicated to the application of natural law reasoning to past and current court cases. 

This journal is a project of the Claremont Institute's Center for Constitutional Jurisprudence.

A Natural Law Manifesto

This essay was delivered by Hadley Arkes in Washington, D.C. in June, 2011.

 

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The Affirmative Action Shuffle

Claremont Institute Senior Fellow Edward J. Erler discusses Fisher v. Texas in light of the jurisprudence of affirmative action launched by Regents v. Bakke in 1978, and contemplates the rise of the use of racial preferences for preferred ends, rather than the abolition of preferences demanded by the Civil War amendments.

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Justice Thomas Gets to the Point: The Court on Civil Rights

Claremont Institute Senior Fellow Ken Masugi comments on Justice Clarence Thomas's concurrences in the recent civil rights cases and makes the case for the Justice's long-standing pursuit of constitutional colorblindness.

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The Court and Marriage: Anthony Kennedy's Hate Speech

Mark Twain said of Wagner's music that "It's not as bad as it sounds." The decisions brought forth on Wednesday morning by the Supreme Court are far worse than they sound. If we credit the authors of the two main opinions, Justice Kennedy (in U.S. v Windsor) and Chief Justice Roberts (in Hollingsworth v. Perry, on Proposition 8 in California), the two decisions affect to be quite limited in their reach. The justices would feign to be artisans of their craft, carefully shaping judgments precisely confined—or even, in the case of Roberts, holding back from a judgment altogether. But in truth, these judgments cannot be cabined. They lay down the predicates for litigation that will clearly unfold now, and with short, easy steps, virtually all of the barriers to same-sex marriage in this country can be swept away. Even the constitutional amendments, passed by so many of the States, can now be overridden.

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Misplaced Hysteria About the Voting Rights Case

Michael Uhlmann offers some political and historical context and commentary on this week's Voting Rights Act case, Shelby County v. Holder.

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Counting Down at the Court, Tuesday: Takings of Property, and Voting Rights

By 10:00 today, Wednesday, we will know whether marriage as an institution will be recast by the Supreme Court. But on the way to that decision the Court had to resolve some other cases of the moment, including the Fisher case from Texas on racial preferences and a serious challenge to the Voting Rights Acts (Shelby County, Alabama v. Eric Holder). On Tuesday the Court resolved the case on Voting Rights. But it also filed a notable case on rights of property and the Takings Clause (Koontz v. St. Johns River Water Management District). A conservative block of five justices held together to put across both decisions, and conservatives could walk away this morning thinking, “so far, so good”—and could this possibly hold for Wednesday?

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Counting Down at The Court: Racial Preferences—Justice Kennedy in Control

We continue waiting this week for the momentous decisions that the Court will be releasing in this final week in the term, especially the cases on marriage. Hadley Arkes offers his account of the action in the Court on Monday morning, including the most notable case, on racial preferences at the University of Texas. Justices Scalia, Thomas, Roberts,  and Alito have been ready to strike more decisively at the whole scheme of racial preferences. But the outcome of the case was controlled by Justice Kennedy, supplying the fifth and necessary vote. Only Clarence Thomas made the case again for the categorical wrongness of racial preferences. Professor Arkes considers here the depth of the argument not made, and tries to gauge where the cases are likely to move now.

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In the Week of Waiting: The Supreme Court on the 5th Amendment and "Natural Language"

This is the Week of Waiting: In the final days of the term we are waiting for the Supreme Court to release decisions on some of the most vexing issues in our politics, on racial preferences, the Voting Rights Act, and above all the meaning of "marriage." Yesterday the Court administered a shock of sorts to the friends of federalism when it denied, to the people of Arizona, the rightful authority to insure that the power of voting will be shared only with fellow citizens. The Court also released yesterday a decision on the Fifth Amendment that may well be overlooked as the attention is drawn to the cases even more momentous. But Hadley Arkes argues that the case brings back the teachings of James Wilson and Thomas Reid on "natural language," and it leads to some hidden truths on "self-incrimination."

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The Unitary Papacy: What the Pope Can Learn from the American Constitution

2012 John Marshall Fellow Michael Fragoso ruminates on the lack of sufficient unity and energy in the pontifical commander-in-chief.

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Did Senator Lee Forget the Born-Alive Infants Protection Act?

Hadley Arkes has written a piece for our friends at Public Discourse arguing that we don’t need a new resolution from Congress to address the wrongs of clinics like Kermit Gosnell’s—the Born-Alive Infants Protection Act already serves that purpose, and we should restore the civil penalties originally attached to it. Check it out here.

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Revisiting The Born-Alive Infants Protection Act

Hadley Arkes has a new essay that is also running in The Weekly Standard, arguing that in light of the horrors committed by Kermit Gosnell, now is the time for pro-life Congressmen to revisit the Born-Alive Infant Protection Act and clear away the obstacle to its enforcement. We have reprinted his essay here as well.

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The Dog That Didn’t Bark: Another Bad Day for Conservative Jurisprudence

Hadley Arkes recalls Mark Twain’s line on Wagner’s music, that “it wasn’t as bad as it sounds.”  But the decision of the Court on Obamacare on Thursday was even worse than it sounded.   To say that a “mandate” was rather a “tax” was not, as the Chief Justice remarked, as matter merely of “labels.” A politics that takes seriously “the consent of the governed” does not treat a trivial matter the way in which a measure was “justified” to the public and secured its passage.   But Thursday was also another bad day in the annals of “conservative jurisprudence.”  The Dog that Didn’t Bark was “Originalism.” Justice Scalia has famously said that the strength of originalism is found in the cardinal fact that anything else makes little sense.  Whether that is true or not, it may also be the case that, when the chips are down, originalism seems to make little difference.

Posted on June 29, 2012 in Writings

A Dissection of the ObamaCare Ruling

Here, John Eastman dissects the problems—historical, legal, and rational—with the majority opinion Chief Justice Roberts issued on the ObamaCare case yesterday.

Posted on June 28, 2012 in Writings

John Roberts, Legal Realist-in Chief? Or Protector of the Court?

Here, David Forte, Fellow at the Claremont Institute's Center for the Jurisprudence of Natural Law, analyzes yesterday's decision in the historical context of the progressivist and originalist movements in legal doctrine and reasoning, and finds Chief Justice Roberts' opinion wanting.

Posted on June 28, 2012 in Writings

Counting Down at the Court, Tuesday: Takings of Property, and Voting Rights

By 10:00 today, Wednesday, we will know whether marriage as an institution will be recast by the Supreme Court. But on the way to that decision the Court had to resolve some other cases of the moment, including the Fisher case from Texas on racial preferences and a serious challenge to the Voting Rights Acts (Shelby County, Alabama v. Eric Holder). On Tuesday the Court resolved the case on Voting Rights. But it also filed a notable case on rights of property and the Takings Clause (Koontz v. St. Johns River Water Management District). A conservative block of five justices held together to put across both decisions, and conservatives could walk away this morning thinking, “so far, so good”—and could this possibly hold for Wednesday?

Posted on June 26, 2013 in Writings

Did Senator Lee Forget the Born-Alive Infants Protection Act?

Hadley Arkes has written a piece for our friends at Public Discourse arguing that we don’t need a new resolution from Congress to address the wrongs of clinics like Kermit Gosnell’s—the Born-Alive Infants Protection Act already serves that purpose, and we should restore the civil penalties originally attached to it. Check it out here.

Posted on May 14, 2013 in Writings

Revisiting The Born-Alive Infants Protection Act

Hadley Arkes has a new essay that is also running in The Weekly Standard, arguing that in light of the horrors committed by Kermit Gosnell, now is the time for pro-life Congressmen to revisit the Born-Alive Infant Protection Act and clear away the obstacle to its enforcement. We have reprinted his essay here as well.

Posted on April 29, 2013 in Writings

The Bombings and the Claims of Citizenship

Hadley Arkes has a new essay at The Catholic Thing that we've reposted here .

Posted on April 23, 2013 in Writings

The Supreme Court Does DOMA

Last Wednesday, the Supreme Court heard the second day of oral arguments on the matter of marriage, this one focused on the Defense of Marriage Act of 1996 (DOMA). The day before, the conservative judges seemed to be tipped to the side of preserving marriage as we know it. But the justices flew into a cloud of all of the abstractions and clichés accumulated over the years. By the end, we found the spectacle of even conservative judges acquiescing in the notion that it was somehow illegitimate for the laws to cast "moral" judgments. The exchanges pointed no clear outcome, but they did reveal a legal discourse in deep disarray. Hadley Arkes tries here to sort out the strands of argument.

Posted on March 28, 2013 in Writings

Hadley Arkes Responds to Michael McConnell in the Wall St. Journal

Yesterday, Hadley Arkes responded with a letter to the editor to Michael McConnell's recent editorial in the Wall St. Journal on the Defense of Marriage Act ("The Constitution and Same-Sex Marriage," March 22). Here is the full text.

Posted on March 27, 2013 in Writings

Hadley Arkes's Notes on the Argument Today in Hollingsworth v. Perry.

Hadley Arkes was at the Supreme Court today for the oral argument in the first of the two cases on marriage, Hollingsworth v. Perry, on Proposition 8 in California. He reports that the defenders of marriage left the courtroom today "decorously upbeat," with the sense that things were tipped to their side.  Hadley sets down here his impressions and his commentary on some of the arguments made—and missed.

Posted on March 26, 2013 in Writings

Flawed Arguments in the Marriage Cases

John C. Eastman responds to Michael McConnell's recent op-ed in the pages of the Wall Street Journal (“The Constitution and Same Sex Marriage," March 22, 2013), in which McConnell claimed that the Court should avoid the tough constitutional questions by rendering judgment on narrow grounds, jurisdictional in the Proposition 8 case, and a clever federalism argument in the DOMA case.

Posted on March 25, 2013 in Writings

Waiting for the Court: The Coming Arguments on Marriage

The Supreme Court, next week, will allot two days to the oral arguments in the cases on marriage. In the run-up to those arguments, some conservative writers have offered theories of federalism that work to reject the Defense of Marriage Act (DOMA), at issue in one of the cases. Hadley Arkes, Senior Fellow of the Claremont Institute's Center for Constitutional Jurisprudence, warns about theories so refined that they sail serenely past the defense of marriage and the importance of marriage in the laws. Arkes was one of the architects of DOMA and led the hearings over the bill in the House Committee on the Judiciary. He seeks to remind readers here of the purpose that brought forth DOMA and the reasoning that supported that Act. In symposium fashion, we have invited responses to this piece from our John Marshall Fellows and will post their pieces as they come in. Professor Arkes will respond to those pieces once they are published.

Posted on March 24, 2013 in Writings

DOMA and the Logic of Federalism

Ilan Wurman, a 2012 Claremont Institute John Marshall Fellow, writes on the DOMA case, agreeing in part and dissenting in part from Professor Arkes' "Waiting for the Court: The Coming Arguments on Marriage."

Posted on March 23, 2013 in Writings

The Surveillance of Terrorists and their Lawyers: The Supreme Court Does a Trick-of-the-Eye

Just two weeks ago the Supreme Court refused to grant relief to a group of activist lawyers who had come forth to defend men detained as combatants or alleged terrorists. The lawyers sought to fend off the surveillance that could interfere, they claimed, with their freedom to defend their clients. In a narrow decision, in a tightly divided Court, the conservative judges denied that the lawyers had standing to launch the suit. Hadley Arkes thinks the majority got it emphatically right, but pulled off a trick-of-the eye: The reasons that the lawyers were truly at risk, and the reasons that truly justified the judgment of the Court, were left unexpressed.

Posted on March 18, 2013 in Writings

Claremont Institute's Center for Constitutional Jurisprudence Files Brief in Defense of Marriage Act Case

Highlighting the unethical conduct by lawyers at the Department of Justice for their deliberate attempts to undermine the defense of the Defense of Marriage Act, the Claremont Institute's Center for Constitutional Jurisprudence filed an important brief with the Supreme Court in the case of United States v. Windsor, strongly supporting the legal ability of the House of Representatives to defend the constitutionality of the statute when the President and Attorney General refused to do so.

Posted on March 4, 2013 in Writings

Has Obama Rediscovered Lincoln—on Countering the Courts?

Barack Obama persistently invokes Lincoln, even as he firmly rejects the moral “truth” of the Declaration of Independence, the truth that Lincoln took as the moral ground of his political mission. But now, without quite realizing it, the Obama Administration has backed into Lincoln’s teaching—on limiting the reach of the courts. As it happens the Democrats have been following Lincoln’s teaching for years, while Republicans—ever in high dudgeon over “judicial activism"—profess not to understand Lincoln’s position. What the Republicans regard as unthinkable, the Democrats find not only practicable, but enduringly useful. Hadley Arkes recalls here the understanding Lincoln put forth to limit the holding of the Supreme Court in the Dred Scott case. It is time for the conservatives to learn anew the lessons taught by the first Republican president on the limits that constrain the courts as well as the political branches.

Posted on February 14, 2013 in Writings

Natural Law and Constitutional Law: The Rosenkranz Debate at the Federalist Society - Hadley Arkes and Alex Kozinski

The annual Lawyers' Meeting of the Federalist Society in Washington features a debate at lunch on Saturday (this year, November 17th). The event this year featured a debate/conversation on natural law with Hadley Arkes and Chief Judge Alex Kozinski of the Ninth federal circuit. It was a spirited and engaging exchange between friends, and it ended up drawing a larger audience than the audience drawn the year before to hear Laurence Tribe debating Paul Clement over Obamacare. But we were taken with the remarkably warm reception as Arkes made the case anew for natural law in an audience not exactly primed to be sympathetic to it. We were pleased then by the reports of people who were hearing that case for the first time and coming away with an interest in hearing more.

In attendance at the meeting were several young lawyers who had been John Marshall Fellows this past summer, in seminars with Professors Arkes, Uhlmann and Eastman under the Claremont Institute. One of the Fellows set down for the other John Marshall Fellows this account of the event:

I tend to stare at the audience during these talks and I was really struck by what I saw. Of all the discussions, I never saw an audience more engaged and sitting up at attention. They laughed for the first 4 minutes and then at about that time Hadley finished summarizing his main thesis of natural law - and their eyes...lit up. A large portion of the audience had an "aha" moment, as if Hadley was articulating a notion that they already felt but could not rationalize and he was able to conceptualize it into a usable framework. The rest of the "debate" was not really a debate at all, but practical testing of the theory to explore how to use their new intellectual tool.

Prof. Randy Barnett at the law school at Georgetown posted a report on another website and recommended the video recording. He was kind enough to add a "Warning: Start watching this and you won't be able to stop." We set down for our readers the link to the debate HERE.

 

Posted on December 4, 2012 in Writings

"Ironies of Compelled Speech: On the Advertising of Cigarettes—and Abortions."

We are waiting, along with everyone else, for the presidential campaign to start touching the issues that run to the core of things.  We have been convinced, along with many others, that the current election marks a real turning point for the character of the regime in America, and we have argued in these postings that the question of Obamacare marks the strategic center of that problem.   The extension of political control over medicine will bring, among other things, a scheme of rationing that will bar many people from the medical treatment they think necessary to preserve their own lives.  In the political economy of Obama, the extension of regulations over business generates a powerful incentive for businesses to buy waivers from the rules by making their contributions, and establishing their connections, to the party in power.  Banks have already come under sanction for a pattern of lending that yields racially disparate results, even when they follow rules of prudence in lending.   And the legal threat hanging over banks can be readily applied to other businesses.  Step by step, we would be moving into a politically managed and directed economy.
 
In the meantime, the law goes on.  And the courts churn out their decisions.   Just a few weeks ago, a panel of the U.S. Court of Appeals DC Circuit managed to post a limit to the reach of the government as it sought to compel cigarette companies to post messages and images designed to repel their own customers.  One of the pictures showed a man smoking through the tracheotomy hole on his throat.  The public can be grateful for being spared these displays, and yet the path of argument for the court may give pause to conservatives.   The reasoning of the court ran uncomfortably parallel to the arguments used in resisting tests in employment when they create racial disparities.  But along the way, Hadley Arkes thinks the case illuminates points that should have a deeper interest for conservatives:  The language of “strict scrutiny,” intermediate scrutiny, “rational relation” would mark off a scale making little sense to philosophers or logicians.  The scheme makes sense mainly to the judges who have invented these gradations—and the lawyers who must speak with the language given to them by the judges.  And when conservative judges, moving in these grooves, begin themselves to speak of the interests that are more or less “compelling,” they are pronouncing judgments that simply do not spring from the kit of principles available to judges. 

Posted on September 21, 2012 in Writings

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