Religion & Law

Thanks, Patrick, for your response.  I do not think I disagree with much -- if any -- of what you say, as a matter of principle.  My purpose (no pun intended) in resisting (what I *think* is) the Arkes view of federal-judging-in-constitutional-cases is not to defend the "voluntarism" that Patrick sees lurking behind "textualism."  I'm not making claims about what it means, as a general matter, to "make law", or to "judge", or to exercise "judicial review."  It seems to me, though, that *our* Constitution is a written one -- it is a "text" -- and it matters that it is a "text."  It is *that* text (and positive laws made pursuant to it) -- and not anything else -- that *our* federal judges have the authority to interpret and, in effect, to enforce.  (Let's put aside diversity jurisdiction, etc.)  Now, to say this is not to pretend that difficult questions are not presented about what this text means, or about how its meaning ought to be discerned.  It is to say, though, that, when federal judges judge, the "target" is the meaning of this text (and is not the content of the natural law, considered apart from its instantiations and specifications in this text). 

Patrick, do you disagree so far?