Mere Natural Law:
Originalism and the Anchoring Truths of the Constitution
by hadley arkes
regnery gateway, 352 pages, $32.99
C. S. Lewis’s Mere Christianity famously begins with vignettes of ordinary experience. People of all ages and levels of education, Lewis observes, often say things like: “How’d you like it if anyone did the same to you?” “That’s my seat, I was there first,” “Leave him alone, he isn’t doing you any harm,” “Why should you shove in first?” “Give me a bit of your orange, I gave you a bit of mine,” “Come on, you promised.” This was how Lewis introduced his readers to the natural law. Our shared moral responses in cases like these, he argued, are shaped by a universal standard of right behavior. Nobody, or almost nobody, says, “To hell with your standard”; they instead try to show that their behavior in fact conforms to it. Thus did Lewis guide his audience up the Christian mountain by the gradual path of concrete common life before ascending to more difficult theological heights.
In Mere Natural Law: Originalism and the Anchoring Truths of the Constitution, Hadley Arkes adapts Lewis’s title and method to the natural law constitutionalism that he has developed over a lifetime of scholarship and erudition. The thread running through works such as First Things (1986, four years before the founding of this journal), Beyond the Constitution (1990), The Return of George Sutherland (1994), Natural Rights and the Right to Choose (2004), Constitutional Illusions and Anchoring Truths (2006), and others, is that the Constitution cannot be understood apart from the moral principles of the natural law that grounds it. The founding generation, Arkes has consistently argued, grasped the truths of the natural law and believed that these truths lay at the root of American constitutional government. Today, he says, we must do likewise: see beyond the constitutional text to the eternal principles of natural law antecedent to the Constitution’s ratification. What constitutional law needs is more moral argument about the natural law.
Though the themes of Mere Natural Law are familiar, Arkes’s target in this book seems to be contemporary constitutional theory, especially textualism and originalism. In brief, these are theories about the meaning to be extracted from the (constitutional) words of the law. Arkes, it appears, believes that today’s sophisticated proponents of textualism and originalism on the bench and in the academy have missed something crucial about the deeper moral truths underlying the text. He argues that these constitutional truths become apparent if we turn to the morality of “the proverbial Man on the Street,” or even to “the [moral] reflexes of children,” and away from what he claims are the confusions of the highly educated judges and legal academics who dominate constitutional law and theory today. The latter, Arkes says, are all to a greater or lesser degree the epigones of Justice Oliver Wendell Holmes, Jr., who once hoped that “every word of moral significance could be banished from the law altogether.” Arkes mentions a few of these natural laws, such as the law of contradiction (that a thing cannot both be and not be) and the principle of blameworthiness or responsibility (that we do not hold people responsible for acts over which they had no power), but his point is not to create an exhaustive list. It is instead that reasoning from moral axioms inevitably infuses all of law because law is an essentially moral activity.
The great villain in Arkes’s tale is what he calls “defensive relativism.” By “relativism,” he means the “radical denial of the grounds of moral judgment” in constitutional disputes. Legal conservatives believe, “defensively” and erroneously in Arkes’s view, that if they abandon moral judgment in the application of the law, their own favored causes will receive reciprocally amoral evaluation. By striking down government restrictions on, for example, the practice of satanism, legal conservatives hope to “shore up the protections for speech” on college campuses. But it is a false hope. They have failed in these and other walks of American life, Arkes contends, because they have abandoned the field of moral combat to their adversaries.
It is a testament to the attraction of Arkes’s views that other theorists have now taken up the cause of anti-originalist constitutional theory from the right, invoking the moral truths of the classical legal tradition, which long predate the Constitution. Principal among these efforts is Adrian Vermeule’s common good constitutionalism, but other varieties of moral-reading constitutionalism are on offer as well. Progressive moral readings have a long and rich history, of course, as in the work of Ronald Dworkin. Though Arkes resists aligning himself with a “conservative jurisprudence,” in practice it seems fair to say that his natural law constitutionalism is more congenial to what are generally deemed politically conservative results in some of the hottest and angriest areas of constitutional law today: abortion, affirmative action, religious liberty, free speech, and so on.
This is not to say that there are no internal differences within these right-wing moral readings. Arkes seems predominantly focused on the role and function of judges—he has little to say to legislators or executive officers—whereas in Vermeule’s account, judges must often defer to the common good determinations of other political actors. And though the jurisprudence of Justice George Sutherland accents many of these new accounts, Arkes is comparatively eclectic in his natural law sourcing. Aristotle, Aquinas, Kant, James Wilson, Harry Jaffa (as part of a more general West Coast Straussian sensibility, with a heavy dose of Abraham Lincoln), and a host of others across divergent moral traditions are all part of Arkes’s natural law bricolage. By contrast, other more recent moral readings from the right often (though not always or exclusively) depend more centrally on Thomistic or theologically Christian views. These differences notwithstanding, Arkes rightly can claim to be one of the intellectual pioneers of a new school of constitutional thought.
I myself am sympathetic to some of Arkes’s claims, particularly in his chapters on the trajectory of the First Amendment. Arkes is correct to point out that the rights of free speech and religious freedom have become hyper-inflated, in some cases nearly to the point of incoherence. He is correct to say that religious exemption is an unsustainable notion in a legal world in which religion has no “defining substance.” No right can long survive if its core is hollow. He is correct, too, to say that free speech law is beginning to display the pathologies of “an iatrogenic disease” that, for all its present swollenness, appears incapable of resisting the real threats increasingly posed by powerful public and private actors. All of this is well observed. It does feel, as Arkes writes, that the bottom is falling out of First Amendment jurisprudence. Building a constitutional culture on the unstable foundation of pluralistic freedom alone seems like a project that was foreordained to fracture and crumble.
Still, there is much to disagree with. Here are two large reservations. First, quite apart from its lack of engagement with scholars who have developed moral justifications of various kinds for originalism over the years, the book suffers from a lack of attention to actual constitutional text and constitutional law. Arkes focuses on a few hot-button areas—race discrimination, abortion and substantive due process, and the First Amendment—but constitutional law is a good deal broader than these flash points. The book contains almost no reference to the actual words of the Constitution, or to constitutional history. Apart from the speech and religion clauses, and a smattering of race discrimination cases, there is not even too much constitutional case law in it. It is a book that takes very seriously the part in Aquinas’s “Treatise on Law” about the law’s being for the common good, but gives only a passing glance to the more concrete requirements that the law be promulgated or made known by those who have care of the community. And these are not secondary matters: Aquinas emphasizes the law’s promulgation to the community and its source in rightful authority because these are key features of the posited law’s determination of the natural law. That is to say, the natural law does not enter into American law (or anybody else’s) unmediated. It is gradually specified in countless concrete domains in positive legal enactments—including constitutional texts.
Arkes might well reply, “True enough, that’s just my point: We should move beyond the constitutional text and focus on morality.” But that response would only accentuate the short shrift he gives to American constitutional law’s existence as a written law with a history of its own. It is possible to be a textualist as well as an originalist, and yet also to believe that moral truths are necessary to guide our interpretation of the text; indeed, it is possible to be an originalist on natural law grounds. But these positions would require the theorist to begin with text and historical tradition before ascending to the airy heights of moral principle. “All sail and no anchor”: That was what Dworkin once vigorously and implausibly denied of his own moral reading of the Constitution. That line crossed my mind more than once in reading this book.
Second, Arkes’s “defensive relativism” diagnosis seems mistaken, and from that incorrect diagnosis follows an ineffective cure. Arkes is writing for an earlier time. In the mid-to-late twentieth century, the regime of liberal neutrality seemingly championed by powerful institutional actors was highly susceptible to Arkes’s critique of relativism. But today, this analysis feels dated. The trouble today is not the amorality of relativism. It is moral disagreement. It is the embrace of an alternative morality whose core commitments—personal autonomy, expressive individualism, the claims of tribal identity of various kinds based on race, sex, and more, to name only a few—are incompatible with the natural law tradition Arkes champions. Many Americans are not abstaining from moral judgment. To the contrary, ours has become a highly morally judgmental and censorious society.
If Arkes’s response to this new reality is something like, “Exactly, and this is why we need ‘our’ judges to impose moral rules directly through constitutional adjudication,” then I’m afraid he has missed his guess about just the sort of morality that judges are likely to impose. Even judges whom Arkes might think could be relied on to think soundly about such matters are likely to surprise him unpleasantly—perhaps in part because of how distant we are from the natural law tradition, how much we have forgotten, and how much we never learned at all. Unlike in the era of Mere Christianity, today many people probably would say, in response to Mere Natural Law, “To hell with your standard.”
If I am right about this, then it will not do to rely on the morality of the man on the street or on children’s moral reflexes to begin the climb back up the natural law mountain. Reminding people that the Constitution is underwritten by general precepts such as the law of contradiction or the principle of moral responsibility will not help, for at least two reasons. First, because abstractions like these do not in themselves answer most of the concrete constitutional problems we fight about. Take affirmative action, one of the issues well downstream of Arkes’s principle of moral responsibility: Even if we could agree that moral desert in some way matters, what it requires in such a case is hopelessly contested. The law of contradiction—a rule of logic, rather than of political morality—does nothing at all to resolve the conflict. Second, because even such basic laws as the principle of moral responsibility have themselves become highly fraught. The very notion of desert, or of merit, as having intrinsic moral significance is under sustained attack on many cultural fronts.
Arkes seems to be looking at our moral fractures through the wrong end of the telescope. He writes: “There has been no more common distraction over ‘rights’ than the tendency to fixate on rights to particular things, such as jobs or housing, while blocking from sight these underlying principles that mark the rightful and wrongful claims to these goods.” This is wrong, and its wrongness is illustrative of the way the book misfires. The last thing we need is more constitutional debate about high principle—about what dignity or equality or freedom or autonomy or even justice, in the abstract and divorced from ordinary life, requires of our constitutional law. In a society increasingly riven by disagreement over fundamental commitments, it is the world of the concrete, of practices, particulars, customs, habits, and traditions, that assumes ever greater importance. Or, to put it in a natural law register, we need a greater focus in constitutional law on ius—on the objects of constitutional justice—to clarify what our principles demand from our law. From the bottom up.
What we need, in a word, is a constitutionalism of things and the practices that attend them. That is what our Constitution and its law concern: voting procedures, religious observances and symbols, speech practices, families, homes, businesses, firearms, countless varieties of human relationships, schools, property and contractual arrangements, wills, government policies and programs of many kinds, and innumerable other cultural and political practices. The constitutionalism we need must shore up these practices of the past against the ruin of the present. This is why Lewis began as he did, with baby steps and quotidian cases rather than abstract principles. Seventy years after Mere Christianity, we need that approach more, not less, acutely. We are not ready—indeed, we are less ready than we have ever been—to be confronted with the empyrean of high natural law principle, which Arkes illustrates in this book with his usual verve and panache. The truths of the sky are real enough, but anchoring truths are found in the earth.
Marc O. DeGirolami is co-director of the Center for Law and Religion at St. John’s University.
Image by Wikimedia Commons on Picryl licensed via Creative Commons. Image cropped.
