Thread by @docMJP

Do we really have to respond to these talismanic mantras yet again? OK, fine.

Normally, looking "to the plain meaning of the words" is fine for judges. But obviously that meaning is *precisely what is in dispute* when cases wind their way up the chain

wsj.com/articles/supre…

This = why we hold that in order to interpret disputed/ conflicting meanings judges must turn to underlying principles/purposes that give meaning to texts they interpret. The concept is not novel. "Conservative" judges need to stop hiding behind textualism as cover for cowardice.

True, as @DavidRivkin/@AndrewmGrossman say, citing Hamilton that "The duty of a judge in a system of self-government is to exercise 'neither Force nor Will, but merely judgment.'" *And this judgment in certain cases requires recourse to the underlying principles/purposes of law.*

Of course, b/c it creates a legislature to write law & president to execute it,"The Constitution doesn’t codify the common good" in terms of what ought to be done. But it sure as hell does codify the purpose of law as to promote the common good (justice, general welfare, etc.)

Then we get to the howler: "The Framers, as students of history, understood that mankind is fallible and that a government powerful enough to prescribe moral truth could achieve only tyranny." This is utterly ridiculous, & the central problem of conservative political philosophy.

Human government cannot avoid prescribing moral truth. This is what law does. You can't scrub the moral "truth claims" out of law. If one wants to examine the founders themselves: well, explain why virtually every Federalist argues for the Constitution to curb "licentiousness".

Of course, laws/government alone cannot reach inside souls and make them virtuous. But governments and law are indeed at the highest level intended to promote certain habits/ways of life over others. To pretend otherwise is to allow others to prescribe their moral truth for you.

The idea that to “secure the blessings of liberty" of liberty means the liberty to dictate moral truth is antithetical to the entirety of prevailing wisdom of the early American Republic: virtually all their thoughts, deeds, and laws and warnings.

They say: "Moral truth isn’t the output of any government program or court decision." True, but at root *every government program depends upon some claim concerning moral truth*. Most court decisions should be relatively procedural, but at highest level not all can be. What then?

"A jurisprudence of restraint, one that recognizes the proper limits of government, preserves the space necessary to practice moral values—ask the Little Sisters of the Poor or Catholic Social Services of Philadelphia."

Prevention of immoral tyranny *is* based on...moral value.

"Genuine limits on government power protect the dignity and worth of the human person." Agreed. But genuine limits depend on the recognition that law should protect that dignity and worth, and a definition of what the human person is. And that is precisely what has broken down.

"The success of the conservative legal movement is evident in the five Supreme Court justices"—is it, now? Heh. Look, I'm glad they are on as opposed to God knows who the Left would have chosen. (Thank you, Trump). But. Come on.

"The chief obstacles to the left’s ambitions are the Constitution and a judiciary that withstands the pressure to read the enthusiasms of the elite into the law." Fair enough. But we don't disagree.

"If conservatives seeking easy victories succumb to the allure of facile judicial activism, those barriers will be breached." No, those barriers will be *strengthened* by acknowledging the truth of the matter:

At the highest level, for the highest stakes, in the most fraught disputes over the meaning of law, no judge can judge on the basis of the text alone. One must turn to the larger principles & purposes of law based on an understanding of human nature is and what government is for.

finis for now / more from @theammind to come - a list of related articles follows:

Our essay WSJ article is about: americanmind.org/features/a-new…

Me on founding:

"...'Blessings of Liberty.' The suggestion that this meant autonomous individualism as the Supreme Court defined it in Casey is absurd. Official documents such as the Virginia Bill of Rights of 1776 make crystal clear..."

americanmind.org/features/why-t…

Me on Vermeuele:

"the Right...has often engaged in what I’ve called an 'antipolitics of ‘principled’ loserdom,' embracing the moral “neutrality” of liberalism in order to try to merely carve out a place for itself in the public square."

americanmind.org/features/waiti…

Me on same issues + Lincoln/Founding:

"If the Right wishes to win the battle of ideas, it needs to drop the absurd notion that a leader’s words encourage or discourage good character, but the policies he is elected to set do not."

americanmind.org/features/the-e…

Me on Christianity and the Common Good at the Founding: soundcloud.com/thomisticinsti…