Wednesday, June 17, 2020

A Non-Reality Based Jurisprudence?

If anything good can be said to result from Neil Gorsuch's thoroughgoing deconstruction of America's constitutional order this week, it could be that his exposure of the intellectual and--therefore--moral bankruptcy of Libertarian based  jurisprudence will draw attention to the roots of the West's crisis. The roots of the crisis of the West are to be found in the Nominalist philosophy of the late Middle Ages, and the resultant skepticism that became the default public philosophy of the West. For our purposes, we can sketch the historical roots of this crisis in summary fashion.

The dominant tradition of Christian thought is grounded in the Platonic thought of Augustine. The central problem of Platonic thought, which Augustine introduced into the thought of the Christian West, is the problem of how--or whether--Man is able to know the real world that he inhabits. Suffice it to say that Plato himself never solved that problem and the Christian thinkers who followed in his footsteps had no more success than Plato did, being unwilling to abandon the authority of Augustine. The result was a tension between Christian faith--which is based on a realist philosophy that holds that Man has an objective knowledge of the world he inhabits--and the Platonic derived philosophy that formed the basis of Augustinian thought.

The introduction of the West to the thought of Aristotle in the 13th century led to a crisis in the Augustinian tradition, because it highlighted the inadequacies of the philosophy inherent in the Augustinian tradition. This led to the rise of schools of thought in late medieval philosophy called Voluntarism and Nominalism. Basically, these schools of thought followed out the implications of Platonism and reached the conclusion that Man is unable to arrive at a real, objective, knowledge of the world he inhabits. As a result, morality could no longer be considered to be based on insight into the objective order of human nature (natural law). Instead, they concluded that the moral law is simply drawn from the arbitrary commands of a God who is ultimately unknowable by human reason. Thus, as long ago as the 14th century Western man had arrived at a philosophical position not too different from what we know as legal positivism. The difference is that the Medieval thinkers still professed a belief in God.

In the wake of the Wars of Religion that followed the Protestant Revolt, with the breakdown of a common Christendom, Western intellectuals sought some system that would allow men of different "Christian" beliefs to nevertheless live together peaceably. The solutions that were proposed followed two paths. One sought a common ground among the warring sects--"Mere Christianity", as C. S. Lewis termed it--that prescinded from theological technicalities (as they were considered). This approach was grounded in the recognition of the strong hold that religion, Christianity, still had on most of the West. However, as public life in the West became ever more openly secular and skeptical, this societal modus vivendi. gradually lost support beyond an empty traditionalism. So much so that, today, to even publicly raise fundamental issues of morality and belief is, at best, almost a manifestation of bad taste. In fact, the dominant skepticism is well on its way to banning such speech and, if possible, even the thoughts.

The second, related, approach was more frankly secular. It found its clearest expression in the Enlightenment thought of Immanuel Kant, who abandoned all pretense that Man knows the real world--rather, said Kant, the human mind imposes order on whatever it is that Man thinks he knows. From that position it was a small step--and one which was explicitly taken by those who followed Kant--to the idea that Man creates his own reality. Reality, thus, is viewed as a product of Man's mind.

Does this sound far fetched with regard to American realities? Not too long ago we might have all agreed that such a philosophy bore little resemblance to the world view of most Americans. And yet, beneath the surface of American life, Kant's thought--and that of his even more radical successors--exercised an enormous influence not just on academic philosophers but on jurisprudence. Anthony Kennedy's "Sweet Mystery of Life" jurisprudence is an almost perfect expression of this type of thinking, which is the orthodoxy of our entire educational establishment:

"At the heart of liberty is the right to define one's own concept of existence, of meaning of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the state."

In other words, at the heart of our constitutional order is the right to make it all up--without being challenged intellectually and without compulsion from the state. Of course, in practice even Kennedy would agree that there must be "certain boundaries" to such liberty, but those boundaries can only be defined by what Ilya Shapiro has termed Kennedy's "fainthearted libertarianism." In the real world of jurisprudence, the definition of those boundaries can amount to little more than the imposition of a judge's personal preferences, and in any event such boundaries as remain are becoming ever fuzzier.

In line with the foregoing, Hadley Arkes has published a fine article today that looks at the state of American jurisprudence, which he finds to be A MORALLY EMPTY JURISPRUDENCE.

The reason that American jurisprudence finds itself to be morally empty is because, being based on a thoroughgoing philosophical skepticism, there is no basis for a reasoned morality such as is found in natural law moral philosophy. "Originalism" and "textualism", as Gorsuch has conclusively demonstrated, is no substitute for an articulated realist philosophy--there is no lack of rationalizing, no lack of fancy language, but the connection to reality is lacking by design and intent. Man feels himself to be his own master, and refuses the bonds of nature and nature's God

Thus, as Arkes points out, from the very beginning of his opinion Gorsuch accepts as a given that the reality of gender or sex is in fact a mental construct--thinking it's so means it must be so. If a man says he's a woman--or vice versa--then that's their sweet mystery of life that we are now bound in law to respect. We have an established public philosophy, a gnostic religion. Even Justice Alito, in his dissent, now finds it impossible to make a straightforward appeal to the objective reality of human nature. Such a philosophy is simply no longer acceptable in public discourse. That was clear enough as long ago as the confirmation hearings for Clarence Thomas, at which Thomas' forthright espousal of natural law thinking was greeted with alarm and rage.

There can no longer be any doubt. Until we are willing to embrace a realistic philosophy that holds to an objective knowledge of human nature, the downward spiral of our jurisprudence and the deconstruction of our constitutional order will continue. And probably at a rapidly increasing rate.

And so, excerpts from Arkes' article:

... make no mistake, this case of Harris Funeral Homes v. EEOC will be the Roe v. Wade for transgenderism, with effects that will ripple out widely in our country, touching and disfiguring our private lives. After all, the Court has pronounced it quite wrongful to cast an adverse judgment, a disapproving judgment, on people who affect to shift their “genders.” As we saw in the case of same-sex marriage, children will have to be instructed in school on this new civic culture that the Court has ordered into place. ... 

Ask yourself: How did this happen, that most Americans turned the indoctrination of their children into the self fulfillment model of sexuality over to ... educators? The answer can only be that Americans had already implicitly accepted that view.

But in his opening remarks on the Harris case, Justice Gorsuch already made a radical move that ran well beyond anything made explicit in the body of his opinion. He said that Aimee Stephens, the one who had been known to the world and his own wife as Anthony Stephens, had “presented as a male” when “she first got the job.” Without the slightest strain, Gorsuch had simply incorporated as his own the predicate of Stephens’s claim: that he had in fact become a woman. ... For the Court to come down on his side the judges would have to do nothing less than confirm, as a matter of controlling fact, that in the eyes of the law Stephens was indeed a woman if he regarded himself as a woman. And the effects would instantly radiate outward: Stephens’s colleagues would be obliged to accept his definition of himself, and the pronouns that came along. If they did not, they and their employer could be accused of sustaining a hostile work environment and put themselves at legal hazard.  

And where is the outcry at this outrageous claim? There is none. Even Josh Hawley, remarkably, states that the opinion "is not sloppily reasoned"! A man can become a woman by thinking he's a woman--that's not sloppy reasoning? Really? What does it say about the state of America that Hawley feels to constrained to talk nonsense like this?

Gorsuch noted that this decision said nothing about locker rooms and bathrooms, for those matters were not raised in this case. But as Justice Alito pointed out, the Court had pronounced any turning away from the transgendered as a wrongful discrimination. ... 
What makes the decision all the more disappointing and demoralizing for conservatives is that Justice Gorsuch was the highly celebrated successor to Justice Scalia. He was vetted and heralded as an “Originalist” and a “textualist” by the reigning authorities at the Federalist Society, along with votaries in the Administration. ...  
... As Justice Alito pointed out, virtually no one in 1964 could have dreamed that the statute barred those who would have an aversion to the homosexual life or the transgendered. But I warned myself, in an earlier piece, that it just would not do for the conservatives to cite the dictionaries on the meaning of sex in 1964. 
... The only way to deal with that argument is to make the move that conservative judges have been so averse to making: to move beyond the text of the statute to those objective truths, confirmed in nature, on the differences that must ever separate males from females. 
That was the understanding of “sex” that Justice Alito had in mind as he countered every case and example cited by Gorsuch. ... 

These judges all went to the very best schools. And those schools indoctrinated them into the public orthodoxy of skepticism. Or at least taught them that they could not openly oppose that public orthodoxy. They accepted terms of debate--"originalism" and "textualism"--that guaranteed their ultimate defeat.

Ryan Anderson, drawing on the full range of texts in biology, condensed the truth of the matter in this way: “Sex, in terms of male or female, is identified by the organization of the organism for sexually reproductive acts.” The Congregation for the Doctrine of Faith noted years ago that there has not always been an Italy or Hungary, but as long as there are human beings, there will be males and females. That is the purpose, or the telos, or the very reason that we have males and females. This was the understanding that Justice Alito was seeking so artfully to defend. But he defended it entirely as the meaning of sex contained in a long list of statutes and the Constitution. What he could not quite move himself to say was that this was indeed the inescapable truth of the matter, the only coherent way of explaining what sex must really mean. There is something, in the shaping of conservative judges, that makes them deeply reluctant to make that move beyond “tradition” and statutes to the moral truth of the matter.
Our friend Carrie Severino declared that this decision by Gorsuch was “the highjacking of textualism.” But it was there to be hijacked by the liberals—along with anyone else—because it had no anchoring truth. She is left then to explain this: Gorsuch was recruited and vetted—and endorsed—by the most credentialed spokesmen for “textualism.” How did they not manage to see that his principles offered no barrier to this kind of judgment? What was it they neglected to ask him? 
In the aftermath of the wreckage, as we start assembling the pieces, we discover that we have now Originalists who defend the rights to abortion, same-sex marriage, and transgenderism, while others have long resisted these moral novelties. But if Originalism is divided on questions of this kind, is it indecorous to pronounce the plain truth?: That Originalism indeed has nothing to say on matters of real consequence. It is a morally empty jurisprudence. ... 
Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College and the Founder/Director of the James Wilson Institute on Natural Rights & the American Founding in Washington, D.C. He was an architect of the Born-Alive Infants' Protection Act of 2002, and of the sequel, the Born-Alive Abortion Survivors Protection Act. Among his books is, most notably, First Things (1986).


  1. $$ quote: “Man feels himself to be his own master, and refuses the bonds of nature and nature's God.”

    Therein lies the cause of our ongoing, continuous self-destruction. I place my faith squarely in Jesus Christ because only through Him is their salvation.

  2. >Gorsuch was recruited and vetted—and endorsed—by the most credentialed<

    Stop using the " credentialed Ivy/communists " . Imported Somali's have better sense.

  3. Is the only direction we have facing us a downward path? Disheartening, to put it mildly.

  4. Excellent brief summary of how we got here. The cherry on top will be the imposition of the odious 1619 project on all future generations. Times like these I think the war is over. It may well be over.

  5. Roberts did it again today on DACA. Obama exceeded his constitutional authority in setting up the program. All Trump was trying to do was to put the power back in the hands of congress, where it has always resided on issues of immigration.

    I don't understand Roberts at all. It was his vote that ruled against Trump. It has been a very grim last three weeks, with no letup in sight. Right now, it is very hard for me to believe Flynn is going to get justice from any black-robbed scalawag.

    1. Did you see Trump's tweet?

      Donald J. Trump

      Do you get the impression that the Supreme Court doesn’t like me?

      10:10 AM · Jun 18, 2020

    2. He wants to be the modern day Roger Taney.

      Rob S

  6. So Stephens got his job as an embalmer and funeral director at the Harris funeral home in 2005 by presenting himself as a man. In 2013 he informed the company that he wanted to present himself as a woman. Stephens died of kidney disease on May 13, having been in hospice. His “victory” will change our lives. This is a travesty.

    1. He ended up presenting himself as a corpse.

      rob S

  7. This should seal it: no more appointments from ANY so-called “Ivy League” school. Graduates are inculcated with leftism from day one. The so-called “Ivy League” has done more to destroy this country than the Red Chinese & the Soviet Union combined.

    It’s ironic these institutions of “progressive” groupthink are referred to as “Ivy League as Ivy is an insidious plant that will destroy anything it’s allowed to grow on/in. It chokes trees, other plants, & will destroy the grout around bricks if you let it grow up the side of a house.

  8. The emanations from penumbras have been corrupting ever since.

    1. Roberts and Gorsuch appear to be intent on totally discrediting the Judiciary as a responsible branch of government. As if the emanations of Bostock weren't enough, the DACA case today is equally farcical.

  9. DACA began with a memorandum composed by then HHS Sec. Janet Napolitano on how to deal with illegal alien kids.

    The history is here:

    Turned down several times by Congress, believed by many to be unconstitutional, the DACA “solution” was issued as an Executive Memorandum. The difference between an Executive Order and an Executive Memorandum is here.

    The SCOTUS has bounced it back to HHS. And in an election year. With no resolution as to its constitutionality.

    1. Here's an interesting interpretation of that case:

      Blue Flu Cernovich

      Today's DACA ruling gives Trump immense new power to confer rights upon citizens, even when those newly granted rights contravene statutory law.

      Under today's DACA ruling, Trump could create an executive order to workaround Section 230 immunity.

      Trump could declare via EO that citizens have a right to access social media, and that it is unlawful to ban people based on their political viewpoint.…

      Under today’s DACA ruling, Trump can issue an executive order granting Americans amnesty from paying taxes.

      This ruling is a blank check.

      Never seen anything like this.

      The unitary executive theory is back, and on steroids!

    2. Belated correction: Above, where I referred to HHS, I meant DHS. But you knew that… :-)

    3. I have a right to half Pelosi's cash. Wow, I like it!

      Rob S

  10. Sticking with the "sex" ruling for a moment, it appears the ruling confers merely semantic status on "sex." That is, biology has no place in the determination of whatever one chooses in their own mind, much less that their determination confers a compliance obligation upon others.

    But as it is semantic, it reeks of no distinction, no difference, no diversity (except individual genetic). Whatever it might be in name, it is arbitrary to reality. Therefore no discrimination can occur--on account of a difference or distinction--because no one can know, as humans are not capable of reading minds. And changeable like the wind--it doesn't matter.

    That person in a dress? It doesn't matter. Someone using the girls bathroom? Who knows? Any identity based on sex? Erased. Race and ethnicity have even less biological basis--though not none. Any identity beyond the individual genetic is henceforth meaningless.

    The New American Dream: "I can be anything I want to be."

    1. "The New American Dream: 'I can be anything I want to be.'"

      And everyone is legally obligated not just to agree but to defer and accommodate?

    2. Since everybody has their own reality, how can you force anyone to support a transgender? You could say I disagree I view him as an oak tree.

      Rob S

  11. Nothing unexpected here. Roberts and Gorsuch merely codified that 2+2=5, and everyone is required to not just agree, but enthusiastically affirm it.

    In other news the Boy (how quaintly cis-normative) Scouts of America will henceforth require the "earning" of both a Diversity and an Inclusion merit badge in order to advance to Eagle Scout.

    The reality far surpasses the worst prognostications of Huxley and Orwell combined.

    1. The courts are gone. At every level. One of the reasons I come to this site is Mark's optimism. Without optimism, nothing gets done.

      Of late, though, I just can't feel it. I used to think Trump was going to win reelection in a landslide. Now? He is getting crushed from every side. Every day another of the thousand cuts.

      I'll step around his unforced errors and an exasperating use of Twitter that my wife says is making potential voters tune him out.

      How does Trump stand it? I also think, correct me if I'm wrong, I see a weariness in his face. Last night an American flag was set on fire on a statue of George Washington in Portland, OR, and then the statue was toppled. No police.

      No pushback. How do we turn this around?

      Is Durham all we have?

    2. If Durham is all we have, it should be enough, if this culture has any real life in it.
      If this culture will tolerate the biggest criminal conspiracy ever launched vs. Const. gov't. (once Durham let's things rip, or if he ducks the challenge), then this culture has no real life anyway.
      It's sort of fitting, that the Durham probe would be for all the marbles.

  12. John Roberts, still striving to out stupid Roger Taney.

    Rob S

  13. Off topic, but are you able to make sense of what is happening in the Southern District in NY? A Trump appointee refuses to resign?

    Optics here are terrible for Trump and Barr. Seems as if the Judiciary, root and branch, is as crazy as the crackpot citizens out burning things down.

  14. Codevilla has a lot to say about the Bostock ruling and the Court’s redefinition of the word “sex” …

    He also opines:

    The U.S. legal system exists to enable ordinary human beings to deal with reality in its own terms, including that all humans are equally human, and that humanity consists of males and females. Today, what amounts to a decree henceforth to call men women and women men lest we suffer legal consequences deserves disrespect just as much as Taney’s implication that blacks are not human. Both propositions are patently false as well as dysfunctional. Why should anybody respect them?

    Today, President Trump has as much right as President Lincoln to order the executive branch to disregard the court’s opinion—in this instance, to continue to use the word “sex” as the dictionaries and biology define it.

    1. I couldn't agree more. That fits in perfectly with the concerns expressed in the American nationalism post.

    2. So far Trump has abided by the rulings of the various courts. Result? The left has gone completely berserk.

      And they are getting away with it (last night statues of Father Junipero Serra & Ulysses Grant were toppled).

      Can you imagine what would happen if Trump had a "John Marshall has made his decision, now let him enforece it" moment? Seems to me the left is asking for a civil war.

    3. What does Trump or any federal court have to do with rioters toppling statues in local municipalities?

    4. "Seems to me the left is asking for a civil war."

      Seems to me they are waging one. It is the right that is in denial.

    5. Of course the left is asking for a civil war.
      Barr or DJT must respond somehow, tho I doubt that emulating Andy J. (vs. this ruling) would be the wise course now.

    6. It does seem indeed seem, that most of the right is in denial.
      I've been predicting scorched earth, for at least months.
      Hopefully Barr expected this, and worked to line up ducks, to deploy at the decisive moment, if he can identify it.

  15. I believe you agreed with Codevilla's idea that, given the DACA ruling, Trump could order the executive branch to disregard a future court's opinion. The ruling, technically, opens the door to such behavior.

    But in the real world, if Trump issued any such order, who in the executive branch would even listen to him? There's Trump and Barr and....?

    No one else. And right now, Trump and Barr are getting clobbered, across the board.

    Trump doesn't have anything to do with statues being toppled. But statues being toppled have everything to do with Donald Trump. I expect Trump to mention them tonight, with good reason.

  16. Yeah, statues being toppled have everything to do with Donald Trump, esp. the Geo. Wash. one in Portland.
    What more evidence do "moderates" need, that the Left really means business?