The Lawful Truth

Constitutional Illusions and Anchoring Truths:
The Touchstone of the Natural Law
by hadley arkes
cambridge, 280 pages, $25.99

Most readers of this review will need no introduction to Hadley Arkes, who once wrote a book called First Things and has long been a contributor to this magazine and a member of its editorial board. From his perch at Amherst College and, regularly, in the nation’s capital as a philosophic gadfly, Arkes has been one of our country’s most persistent and effective advocates of the right to life of the unborn child. He has fought ably, as well, in the ranks of those defending the institution of marriage. In both cases he has left his mark on the laws of the land, among them the Born-Alive Infants Protection Act and the Defense of Marriage Act. His colleagues in the study of jurisprudence know him as a formidable interlocutor and a generous spirit. I know it myself: Nearly fifteen years ago I severely criticized his book Beyond the Constitution in the pages of my own first book, and his response was to befriend me to carry on the argument, which we have done ever since. Years later there is much that remains in dispute between us, but we are both convinced that the argument is worth having.

In Constitutional Illusions and Anchoring Truths, Arkes returns to themes that animated Beyond the Constitution and his later The Return of George Sutherland: namely, that to live under a constitutional government is, unavoidably, to encounter deeper principles, to grapple with the logic of moral reasoning itself, and to confront the need for justification. Standing with Lincoln, Arkes reminds us that laws and policies, courts and congresses, elections, and even the consent of the governed itself must be rooted in the fundamental reality of our rights and obligations as moral agents or they have no rightful claim on our obedience. The scourge of the relativist and the legal positivist, Arkes demonstrates that the “fashionable doctrines” that deny that “we can know moral truths” are an acid that dissolves the rule of law and eats away the ground of all legitimate power, judicial or political.

Where Arkes and his conservative critics part company (as, for instance, in the debate Robert Bork carried on with him in the March and May 1992 issues of First Things) is on the metes and bounds of judicial authority. When Arkes writes, for instance, of “those deep principles of lawfulness that [have] a claim to be respected in all places, or incorporated in the basic law of any country that would claim to be a civilized country under the rule of law,” one gets the distinct impression that, for the judge operating according to this understanding, to know the “deep principles” is to act on them and to “incorporate” them in the “basic law” of our Constitution, even if there is no particular reason to believe that the framers and the ratifiers intended any of the language of the Constitution to incorporate them.

Arkes writes of the famous 1810 case of Fletcher v. Peck, for example, that “even if Georgia had not come under the Constitution and the restrictions of the Contracts Clause, the action of the legislature would still have been wrong.” Wrong? Yes, to be sure. But it is hard to avoid the conclusion, from the context, that a judge following Arkesian advice would say so, with (presumed) authority—would, that is, invalidate a law as “unconstitutional” for violation of an obligation that cannot be found in the Constitution but can be found in a general category of principles of “lawfulness.”

After a bit of this, one begins to feel like Mr. Salter, the foreign editor of The Daily Beast in Evelyn Waugh’s Scoop, who knew that in conversation with Lord Copper, his publisher, there were two safe answers to every one of his employer’s utterances: “Definitely, Lord Copper,” when he was right, and “Up to a point, Lord Copper,” when he was wrong.

So, to take another instance, Arkes writes that if, “under a constitutional government, the judges would have some leeway to test legislation against the principles of the Constitution, it is quite arguable that there must be implicit, in that vocation, the possibility of judging the rightness, the arbitrariness, or the justification of what is enacted into law.” Up to a point, Professor Arkes. And the point up to which we can go is to say that if something in the text of the Constitution, or plainly meant by it as an inference from its text or a shared understanding of its makers, directs the judges to assess the “rightness” of a law in some fairly particular way, then this is quite right. But if Arkes means to say that in some general way “constitutionality” is interchangeable with “rightness” or “justifiability,” this is quite wrong.

The lines just quoted occur in a chapter that nicely exposes the point beyond which we cannot go. Examining with fresh eyes the famous case of Lochner v. New York (1905), in which the Supreme Court invalidated a state law setting maximum work hours in bakeries, Arkes credits the judges of the majority with defending “natural rights, or human rights: The right to make a living at an ordinary calling, to enter a legitimate occupation, without arbitrary restrictions, was a right that ran as deep as the right to speak or publish.” Perhaps it does, in justice, run as deep, but unlike the right to speak or publish, the right Arkes describes here cannot be found anywhere in the Constitution, or in any fair inference from its terms. Nowhere does Arkes give an account of how the due-process clause—universally understood, at least until the eve of the Civil War, as having no bearing on the neutrally applicable choices made by legislatures to regulate property or economic transactions—can be made to do the work it did in Lochner. Nor is it clear how one can say yes to Lochner and consistently say no to the Dred Scott decision, which arguably rested on a somewhat less outlandish reading of the due-process clause. Arkes’ study of Lochner is detailed and thoughtful, but it rests on the collapse of the distinction between the legislator and the judge.

Elsewhere in Constitutional Illusions, Arkes writes with acute awareness of “the very logic of the separation of powers,” so this persistent lapse where the due-process clause is concerned is puzzling. In the most interesting chapters of the book, making up nearly half its length, he calls into question a now truly fossilized conventional wisdom about the freedom of the press—that the political branches of the government, the executive in particular, are disabled by the First Amendment from restraining the publication of matter that will endanger the community. Reviewing the “Pentagon Papers” case of New York Times Co. v. United States (1971), the “prior restraint” precedent of Near v. Minnesota (1931), and the case of former CIA officer Frank Snepp, Arkes shows that things are not so simple as the usual reading of constitutional doctrine in these matters would indicate. In the Near case, a state court had subjected a newspaper in Minnesota to continuing supervision of its publication after a years-long track record of libel and defamation. Yet the Supreme Court conflated this reasonable injunction, which followed a trial in which the publishers were adjudged to be guilty of flagrantly harmful actions, with the classical regime of official censorship, before publication, that had given rise to the “no previous restraint” principle of liberty of the press in the eighteenth century.

Building on this Near miss, the Burger Court forty years later substituted its own judgment, of the danger posed by publication of the Pentagon Papers to Americans serving their country, for the judgment of the executive branch that is responsible (unlike the judges) for the nation’s security. And it did this while admitting that the justices lacked the factual knowledge necessary for an informed judgment. Such is the strength of the doctrinal commitments that armor the judicial mind against the intrusion of good sense! Yet nine years later, Arkes argues, in coming down hard on Frank Snepp for publishing his CIA memoir without agency preclearance, the Court abandoned virtually all the reasoning that had shored up its Pentagon Papers decision. Does the bare difference that Snepp had signed a secrecy contract as part of his CIA employment make his case fundamentally distinct? Arkes thinks not, and the matter requires close study. If Snepp, why not the New York Times? It is a fair question and an important one in the age of NSA intercepts and WikiLeaks.

Here, as in his other books, Arkes attempts to navigate by the natural law, whose logic he sees interwoven nearly everywhere that judges think they are doing only the work of the positive law. This observation is often true and serves as a valuable lesson in the nature of legal reasoning. But to put the question as Arkes himself might: If the political branches are more appropriately the constitutional decision makers on questions of national security, even in the face of language as explicit as the First Amendment’s “freedom of speech, or of the press,” what principle requires the political branches to take a backseat to the judiciary on questions of the public weal, where no particular language of the Constitution can be brought to bear? What becomes of the “logic of the separation of powers” then?

In Constitutional Illusions, Arkes has one more go at his friendly adversary Robert Bork. He paraphrases Bork as holding the view that “in a conflict between the natural law and the positive law, the positive law must be given precedence.” Arkes replies that such a principle “is nowhere to be found in the positive law. Certainly it is not part of the positive law of the Constitution.” My rejoinder, taking Bork’s part in this dispute, is to turn to Article III of the Constitution. There we find that the federal courts are given jurisdiction over cases “arising under this Constitution, the laws of the United States, and Treaties.” Conspicuously missing, it seems to me, is language that gives jurisdiction over cases arising under deeper principles of moral right, natural liberty, or grounds of rational justification. It is no denial of the existence of such principles to say that judges ought to steer clear of acting on them where the Constitution provides no particular authorization. Hadley Arkes has once again challenged us to do our best thinking about the scope and limits of judicial power. But once again I find myself saying, “Up to a point, Professor Arkes.”

Matthew J. Franck is director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute.