You were drawn to the life of the law because you thought it raised questions of the gravest consequence, questions of moral consequence, about the just ordering of our lives, about the things that are just or unjust, right or wrong. And having come this far, why would you ask us or yourselves to settle in with a mode of reasoning about the law that gives us a kind of sing-song morality, a set of slogans pretending to a jural philosophy, and whose main rationale is to avoid the appearance of engaging in moral reasoning? You offer constructions to scale down the project, to look only at the text of the Constitution, or the tradition of holdings by judges, while cautioning us again not to ask the questions that run beneath the surface to the core of things. At best, we may produce in that way decisions that seem by and large to come out the right way. But we cannot give our best reasons, our fullest reasons, the reasons that give the most coherent account of the decisions we are making, the law we are shaping. And the question at the end is: why should you—why should we?—settle for anything so diminished, when measured against the moral seriousness of the questions brought before us?
In the Physics, Aristotle remarked that if the art were in the materials, we would expect to see ships growing out of trees. But ships were part of a world governed by design, by the awareness of ends, and the shaping of reasons. The world of law is part of that same world. And so we offer this appeal from the old jurisprudence to our friends who are offering us their version of conservative jurisprudence: Where in all of this is the art? Where is the understanding you’ve cultivated, the judgment you’ve seasoned in experience? Where in all of this would we find the record, to be lingering in time, that we were here: that the law we are preserving would be as comprehensible and compelling, as resonant with common sense, in the next generation as it is in our own, and as it will ever be?
