Conservative Jurisprudence Without Truth

When the helicopters lifted off the roof of the American Embassy in Saigon, Gerry Ford commandeered time on television to tell the country, “This is no time for recriminations.” To which my friend Daniel Robinson responded, “This is exactly the time for recriminations!” And now, the cry has sounded again with the defection of Neil Gorsuch on the landmark cases on transgenderism, Harris Funeral Homes v. EEOC and Bostock v. Clayton County. So much had been invested in Gorsuch—so many avowals, so many personal endorsements, so many of us expressing hopes for him against those who were harboring doubts. And still in these cases, Gorsuch has affected to represent conservative doctrines of jurisprudence, notably “Originalism” and “textualism.” If those perspectives offered no guidance on the matter of transgenderism—the most radical denial both of nature and of truth—what can they be but slogans untethered, in search of some anchoring ground?

It may be one of those blessings of creatures constituted as we are—composed, as it was said, “of eros and of dust”—that we try to salvage something even from the wreckage of the Bostock case. And we remind ourselves: that with steadfast application and close attention, it had indeed been possible to salvage some striking items even from the Titanic long at rest. Some conservative writers thought they had found a saving remnant in Bostock: that Justice Gorsuch did not really hold that, with the alchemy of “textualism” working on the Civil Rights Act, Anthony Stephens had indeed become a woman. These efforts have been thoughtful, but I think that with a closer reading they prove untenable. And the stumbling block, which pops up on every path, is the question of whether there is indeed here a “truth” that cannot be evaded, a truth about the way in which human beings are constituted as males and females. The Congregation for the Doctrine of the Faith once pointed out that there has not always been an Italy or a Hungary, but as long as there are in the world human beings, there must be males and females. That is the very reason or purpose for which we have the bodies we have, marking us as males and females. That is the telos that marks the hard meaning of “sex.”

The most decisive argument, which should dispel all illusions about this case, comes from David Crawford’s essay in these pages, “The Metaphysics of Bostock.” Crawford pointed out that Gorsuch managed to confound the “sexual attraction” of a male and a female for the same woman, as though they were indeed the same thing. But they are the same only if one detaches “sexual attraction” from the embodied lives of human beings, constituted as we must be, by nature, as either male or female. They are the same only if one detaches “sexual attraction” from the objective meaning of sex.

Justice Gorsuch was willing to take seriously two different views of sex: one the biological definition, reflected in the way our bodies are organized for our reproductive functions, and the other the theory of transgenderism, that we can alter our sexual “identities” through our own sense of ourselves. Gorsuch could hold out the latter possibility without dislodging himself from the holding he was content to reach: that when it comes to “discriminations based on sex,” in the eyes of the law, Stephens has become a woman if he has come to regard himself as a woman. That is a decision, we are told, that the law, and the rest of us, are obliged to respect.

But if there is an objective truth in the organization of our bodies for reproduction, then there is no plausible ground on which the law or anyone else can be obliged to respect Stephens’s claim that he has made a transition from male to female by the force of his own will. That is untenable as a proposition. This is the difference that a truth makes when it is brought into the mix. Whatever Gorsuch really understands about “biological sex,” there is no way that his opinion then confirms the abiding truth of those differences in nature that separate males and females. It is that truth that forms the stumbling block.

Perhaps the point will come out more clearly if we draw upon an earlier crisis in our politics on the meaning of “the human person.” In his famous Peoria Speech, Lincoln said that the question of slavery or freedom for the black man “depends upon whether a negro is not or is a man. If he is not a man, why in that case, he who is a man may, as a matter of self-government, do just as he pleases with him. But if the negro is a man, is it not to that extent, a total destruction of self-government, to say that he too shall not govern himself?” Of course, in that dawning age of Darwinism and the emerging “science” of anthropology, there was no want of writers and public men all too ready to insist that black people stood on some plane between animals and real human beings. In a remarkable fragment Lincoln wrote for himself, he demonstrated that this argument was untenable: There was no principled ground for removing black people from the circle of human beings, or rights-bearing beings, that could not apply to whites as well. Was the black man less intelligent than the white? “Take care,” wrote Lincoln. “By this rule, you are to be slave to the first man you meet, with an intellect superior to your own.” And if the test were the lightness or darkness of the skin, the white man could be enslaved by the next white man “with a fairer skin than your own.” The definition of the “human being” who was the bearer of natural rights could not be confined to white people.

And at the same time, that very question about the meaning of a “human being” could not possibly be an open question in this regime.  It was not a question waiting to be settled in the political process, through the votes of a majority or the declaration of someone in brief office. It had long ago been settled and explained by Aristotle: There is only one kind of creature fitted by nature for the life of the polis, the political order, that association marked by the presence of law. Only one kind of creature is capable of making a promise, tendering his consent, and then honoring an obligation, even when it no longer accords with his inclinations or interests. Only such a creature is capable of framing “laws” that other creatures of reason can be expected to understand—and respect. And of course, only such a creature can weigh his interests and knowingly tender his consent to the terms on which he is governed. Even in this age of “animal liberation,” the cows and horses are not voting in Massachusetts. A “political order” and a government “by the consent of the governed” cannot be agnostic about the nature of the beings who constitute a political regime.

In our own time, we have seen a replay of the old question of who really counts as a human being, and children in the womb have taken the place held by black people in the nineteenth century, as beings whose human standing is contested. But as some of us have shown, the problem dissolves with the same reasoning used by Lincoln in that earlier crisis over who counts as a human person. For we find that there is nothing to be said, in ruling out the unborn child as a human being, that would not apply to many people walking about outside the womb.

On that matter of abortion, there is much more to be said, and I fear I’ve spent a large portion of my life already saying it. But I would put it aside now for the point I’m offering here: At the deepest root of the law is an understanding of the nature of that creature, that “human person” whose nature and gifts are necessary to the idea and practice of law. Michael Hanby, David Crawford, and Margaret McCarthy have pointed out, in the aftermath of Bostock, that the Court struck at the very root of the law in denying the necessary way in which human beings by nature must be constituted. In doing that, the Court has given us, as C. S. Lewis had it, “the abolition of man”—and woman. For a child moving into adolescence, it may now raise the most serious confusion as to what distinguishes his father from his mother, or himself from his sisters. And yet, as conservative critics offer their most serious critique of the decision rendered by Gorsuch and his colleagues in Harris and Bostock, they find errors in the understanding of precedents and the reading of statutes; confusions in the meaning of “discrimination on the basis of” as opposed to “because of”; errors in the true methods of “textualism”; errors in confounding “sex” with “sexual orientation.” Nowhere do we find any recognition that this decision strikes at the meaning of that very human nature which stands at the base of the law. The ignoring of this truth has not been counted by conservatives as the deepest wrong in this decision. It has hardly registered as one of the faults in this judgment as a legal judgment.

This truth about the human person, the subject and object of the laws, is not the kind of subject that comes into sight when conservatives turn their minds to “jurisprudence.” Yet for James Wilson among the Founders, this truth was the anchoring truth of the law. He thought it fitting to touch on this truth in the first opinion he wrote for the new Supreme Court, in Chisholm v. Georgia (1793); he mentioned it in his first, celebrated lecture on law; and in subsequent lectures, he would draw out the implications of our human nature across the spectrum of our law. What counted as “evidence” would trace back to what was “evident” or knowable to that mind distinctly human. What has been revealed in the reaction to Bostock is that the appeal to the anchoring moral truths of the law was long ago ruled out by what is taken, in our own day, for “conservative jurisprudence.”

At the end of Evelyn Waugh’s Brideshead Revisited, Charles Ryder directs a contingent of World War II soldiers in making use of the vast Brideshead estate and its chapel. There is the majestic house and sumptuous grounds owned by a Catholic family in which he had once been enmeshed. The soldiers, playing soccer, have damaged some of the statuary, and the elegant fountain has become a receptacle for cigarette butts. Ryder’s young aide, the hapless Hooper, finds the spectacle almost unintelligible. “‘It doesn’t seem to make any sense—one family in a place this size. What’s the use of it?’”

“‘Well, I suppose,’” says Ryder, “‘Brigade are finding it useful.’”

The simple Hooper moves to the simplest truth: “‘But that’s not what it was built for, is it?'”

“‘No,’” says Ryder, “‘not what it was built for.’” This political order, shaped by the Founders, was not made for slavery. Even Founders from the South recognized, sheepishly, that slavery was at odds with the premises of the new political order. Slavery had long been in place, but the momentum of the revolution swept it from most of the states from the 1770s through 1804. The Founders took steps to block its internal expansion and withhold moral endorsement, and they sought in different ways to put that institution, as Lincoln said, “in the course of ultimate extinction.” This American Constitution was not made to license the private killings of 800,000 unborn children each year, at the order of their natural parents. And it was surely never meant to house the denial of that nature that distinguishes mothers from fathers, brothers from sisters, and secures the ground of all of the rights that flow from nature. That is not what the Constitution, and this American regime, were made for.

Hadley Arkes is Ney Professor of Jurisprudence Emeritus at Amherst College and the Founder/Director of the James Wilson Institute on Natural Rights & the American Founding. Among his books is First Things (Princeton, 1986).

Photo by Senator Claire McCaskill via Creative Commons. Image cropped. 

First Things depends on its subscribers and supporters. Join the conversation and make a contribution today.

Click here to make a donation.

Click here to subscribe to First Things.