4 Comments

Excellent essay, Joe. I, too, lean toward a Deweyan view of history, a progressive view of how to best evaluate moral agents and the social progress they effect. We are mortal beings living in definable social and material conditions. Moral possibilities are anchored and defined by the socio-economic conditions in which we live as well as by the moral values to which we aspire. We are not angels contemplating our eternal natures, as absolutists of all stripes might opine. We are mortal beings, qualified by our living circumstances, aiming to push the envelope of civilized life forward one step at a time.

Moral absolutists believe that moral ideals, the possibilities for moral progress, exist independently of the existential conditions of our lives. Oddly, they cannot subscribe to the notion of moral progress. They back themselves into binary corners of right and wrong, good and evil that have existed from the beginning of time, itself. Time, place, and socio-economic conditions can't play a role in their concept of history or human agency. They live in the eternal present and history itself becomes an oxymoron or something that simply doesn't exist.

I wonder how thought leaders in jurisprudence come upon and embrace this or that methodology when deciding issues of law and its endless cases. Are their methodological choices made in bad faith? Do they embrace theoretical outlooks that best fit their pre-existing political or moral outlooks? It would appear that what the press calls conservative judges and justices are reactionaries seeking a status quo ante - not only a time before the present but a mythic golden age that never existed at all. The deepest and saddest irony is that conservative judges and justices are activists despite their sincerest avowals. And, not for nothing, Senators vote for judicial nominees based on the most probable outcomes of their judicial rulings. Few bother to dress their quest for political power in methodological robes. They leave such matters to debate societies such as the Federalist Society.

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Very nuanced discussion of the difference between originalism and presentism

Excellent

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