Constitution’s Moral Hazard
Unveiling the Anchoring Truths of the Constitution
Hadley Arkes, emeritus professor of political science and jurisprudence at Amherst, models his latest book on C.S. Lewis’s Mere Christianity. Lewis aimed to compress the fundamentals of his faith into a set of “principles that are accessible even to children.” Arkes, who has articulated a natural-law and natural-rights-based approach to constitutional interpretation, endeavors to state the “anchoring truths” of that doctrine in a manner understandable “by virtually everyone,” without prior philosophical or jurisprudential training. He believes that “ordinary people” can be brought to grasp “principles of common sense that are far more precise, with a practical import,” than homilies like “be kind,” and can be shown how those truths apply to constitutional issues.
The doctrine of natural law was largely a construction of the great Catholic theologian St. Thomas Aquinas (1225-1274), who sought to reconcile Aristotle’s prudence-guided ethical teaching with the absolute commands of biblical faith. But while Arkes cites both Aristotle and Aquinas, his account of natural law draws more on the 18th-century Scottish “moral sense” theorist Thomas Reid, whose influence on the American Founder James Wilson he stresses, along with the doctrine of the German philosopher Immanuel Kant. In their spirit, he aims to provide a purely rational or deductive account of the morality that is already implicit in our Constitution, since it reflects the sense of right and wrong that members of civilized societies possess or take for granted.
Arkes’s bête noire is “the passion for relativism” that has infected our culture and constitutional understanding in recent decades, “to the point where people with advanced degrees forcefully insist that we cannot tell the difference between a male and a female”: Think of then-Supreme Court nominee Ketanji Brown Jackson’s stated incapacity during her confirmation hearing to define a woman, because she was “not a biologist.” Of course Jackson knows just as well as anyone, regardless of education, what a woman is and how she differs from a man. (Had a man been chosen instead of Jackson to replace Ruth Bader Ginsburg on the Court, strong objections would have been raised by feminists, even if the candidate said he was “really” a woman.) What restrained Jackson from acknowledging that awareness was the fear of offending an ideologically motivated coterie who insist that “gender” is “socially constructed,” so being male or female is a matter of individual decision, once one is liberated from society’s constraints.
In upholding our common-sense awareness of the natural ground of sex differences, as on most of the issues he takes up, Arkes situates himself on the “conservative” side of today’s constitutional debates. But he denies that the relativistic approach to human reality is limited to the left. He cites the tortured reading of the word ”sex” in the 1964 Civil Rights Act, which forbids discrimination on the base of sex as well as race, by Trump-appointed Supreme Court justice Neil Gorsuch in the Bostock case. Contrary to any plausible reading of what the authors of the law had in mind, Gorsuch, in his majority opinion, interpreted it to include “sexual orientation” and “gender identity,” so as to protect the equal rights of the “transgendered.”
In reality, Gorsuch’s rewriting of the Civil Rights Act was not an instance (as its defenders maintained) of textualist or originalist jurisprudence at all: Taking the word “sex” in the sense in which it was universally used in 1964, nobody could interpret it to refer to a constructed “identity.” But it is on this ground that Arkes distinguishes his approach to constitutional interpretation from the method espoused by most constitutional conservatives today. He blames textualist justices like Antonin Scalia and Samuel Alito for grounding their rejection of progressive rewritings of the Constitution, such as the invention of a right to abortion that is nowhere stated or implied in that document, on the fact that the test gives judges no authority to decide such matters. They would rather leave it to our elected leaders to decide.
To be sure, Arkes professes friendship for Scalia and Alito and never portrays them as moral relativists in their personal beliefs about matters like abortion or the redefinition of marriage. But this deferral of authority over such issues to elected officials makes them in Arkes’s view legal “positivists,” no different in their jurisprudence from their progressive opponents. To fulfill their judicial roles properly, Arkes maintains, they should simply have declared practices like abortion and same-sex marriage wrong on the ground that they violate the principles of natural law to which the authors of the Declaration of Independence professed their allegiance, and which they understood the Constitution (as Abraham Lincoln did) as designed to uphold. (Arkes is no less insistent that school segregation should have been declared unconstitutional on the same ground, rather than on the Warren Court’s specious social-science “evidence” of its harm.)
Unfortunately for Arkes, he has no effective answer to the objection that judges like Scalia would offer to his proposal for basing rulings on moral issues directly on principles of natural as distinguished from constitutional and statutory texts: Won’t progressive judges similarly invoke what they call a higher law, ungrounded in the text, to justify the very policies Arkes opposes? No invocation of liberal causes like same-sex marriage, race-based preferences in employment or school administration, or the demand that schools indoctrinate students with woke ideology will neglect to invoke such pious phrases as ”human dignity,” “children’s rights,” or “redressing historical injustices.”
Arkes can only recommend that conservative jurists “show them where their reasoning is wrong.” Like his liberal jurisprudential opponents, such as the late Ronald Dworkin, Arkes would turn deliberations over constitutional and legal cases into seminars on moral philosophy. I know of no precedent for this understanding of the judicial role among the deliberations of those who wrote and ratified the Constitution. Nor, given the current political and academic zeitgeist, is there reason to think that in any such seminar, Arkes’s side would win.
The problem lies in setting up a false dichotomy between two opposed models of the judicial role: the positivism advocated by Oliver Wendell Holmes, wrongly celebrated by liberals as an advocate of liberty when he was a nihilist who (as Arkes observes) wished to expunge all moral language from the law, on the one hand, and a natural-law jurisprudence, liberated from the text, which is unlikely to advance the very causes that Arkes favors. There is in fact a third way, espoused by judges who appreciate the constitutional limits of their role, yet manage to interpret the texts they address in a manner that appreciates their moral context. If they forgo Arkes’s naïve, Kantian faith that simply appealing to a universal moral sense will settle all controversial constitutional issues, such judges and legal scholars will actually learn much from the way Arkes addresses the specifics of these problems.
In imitation of the late constitutional scholar Walter Berns, Arkes explains how properly applying the constitutional text to certain issues entails making moral judgments rather than relying only on ostensibly “neutral” principles. This is particularly evident in cases involving the First Amendment protection of freedom of speech. Arkes properly stresses the Supreme Court’s exclusion in its 1942 Chaplinsky ruling of mere “fighting words” (in this case, insults launched through bullhorns and directed at local churches on a Sunday morning) from the Amendment’s protection. (Insults, designed to provoke, fall outside the category of reasoned debate that the Founders aimed to promote.)
By the same logic, Arkes persuasively argues, the Court erred in its 1971 ruling in Cohen v. California upholding a young man’s right to wear a jacket with the legend “F— the Draft” in a courthouse. On purely relativistic grounds, Justice Harlan stated that “one man’s vulgarity is another man’s lyric,” that the jacket’s slogan constituted “political speech,” and that government had no right to “cleanse” public debate of vulgarity. Far from upholding an originalist or textualist interpretation of the Constitution, Harlan and his brethren were simply imposing a late-20th-century libertarian doctrine that would deny a community the right to uphold elemental standards of decent public behavior.
Even worse, but following the same line of thinking, was the decision, defended by the American Civil Liberties Union and upheld by the courts, to uphold the right of the American Nazi Party to stage a march through the heavily Jewish suburb of Skokie, Illinois (the home of thousands of Holocaust survivors) in 1977-78. Though the Nazis ultimately changed the venue of their march owing to public pressure, it is remarkable that judges and ostensible partisans of civil liberty could make no principled distinction between a political rally aimed to persuade and a march of crazed haters intended solely to rub the most horrifying memories further into the faces of a long-persecuted group.
Arkes rightly observes and laments “an erosion in the moral understanding that needs to govern the regulation of speech,” thereby undermining public support for the free speech itself (witness today’s “cancel culture” for an extreme consequence). To the response that if government undertakes to ban Nazi demonstrations in Skokie, the next step will be to prohibit civil-rights or pro-life demonstrations, the only reasonable response is that the proper application of constitutional and legal rules requires an exercise of the Aristotelian virtue of prudence, coupled with the very sort of originalist reading of the Constitution that Arkes deplores.
In criticizing the Court’s refusal to impose an outright ban on abortion based on the principles of natural law, Arkes laments Justice Brett Kavanaugh’s remark in his Dobbs opinion (reversing Roe v. Wade) that “the Constitution is neutral” on the topic, being “neither pro-life nor pro-choice.” Arkes compares Kavanaugh’s professed neutrality to the stance that Stephen Douglas adopted toward slavery during his debates with Lincoln, professing not to “care” whether the denizens of Kansas and Missouri voted slavery up or down. But while contrasting Douglas’s stance with that of Lincoln, who held that Constitution was designed by its authors to facilitate the ultimate abolition of the “peculiar institution,” Arkes also acknowledges Lincoln’s refusal to issue the Emancipation Proclamation except as a war measure, one that applied only in territories in rebellion against the Union.
While there can be no doubt of Lincoln’s hostility to the continuance of slavery, he also recognized the limits of his constitutional authority. Not only would an endeavor by him simply to proclaim an end to slavery throughout the Union on his own authority have been politically imprudent; it would have been an infringement of the constitutional rights of his fellow citizens, who were entitled to be ruled by a government of their choosing, subject to established legal procedures and limits to any officeholder’s individual authority. Abolishing slavery permanently required a constitutional amendment.
In wanting to assign the Supreme Court the authority to impose whatever content it finds inherent in the natural law, Arkes fails to acknowledge such limits. Valuable as his analysis of particular constitutional questions is, his prescriptions regarding the Court’s duty would tend undermine its public respect no less than the positivists have done.
Mere Natural Law: Originalism and the Anchoring Truths of the Constitution
by Hadley Arkes
Regnery Gateway, 352 pp., $32.99
David Lewis Schaefer is professor emeritus of political science at the College of the Holy Cross.
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