This essay is a response to “Anchors Aweigh” (December 2023) by Marc O. DeGirolami.
Some of my friends were vexed on my behalf on account of Marc DeGirolami’s recent review of my book, Mere Natural Law—vexed before I had the chance to read the review myself. And yes, there are things to be vexed about, but those things are a bit overcome for me by the fact that DeGirolami gave me this delicious compliment: His praise for the book, his recounting of key points—even his remark about my “usual verve and panache”—came through with far more clarity than the things he sought to explain as criticisms. He took care to cite important lines from my book that even the friendly reviewers did not think of citing. For that, I’m really quite touched. But the irony here is that his criticisms were at odds with the very things he was praising in the book.
DeGirolami so aptly began the review by noting that the title Mere Natural Law offered an allusion back to C. S. Lewis in Mere Christianity. Lewis drew attention to the fact that in arguments among children we will find the rudiments of moral reasoning. They will appeal to rules (“we play football every Tuesday”) and to a sense of principle in insisting on rules applied equally. And above all, they know that an argument makes no sense if there are no standards for judging right or wrong answers.
My book moved in that vein as I appealed to that great Scot philosopher of the late 18th century, Thomas Reid, a philosopher who was read closely by John Adams and James Wilson among the American founders. Indeed James Wilson invoked Reid in the opening lines of the very first opinion to be reported in the Supreme Court Reports, Chisholm v. Georgia (1793). Wilson noted that we were at the beginning of law under the new Constitution with no precedents to draw upon. We would have to look first at the “general principles of jurisprudence” and yet even before that, he said, we have to be drawn back to Thomas Reid “in his excellent enquiry into the human mind, on the principles of common sense”—which is to say, the grounds on which we can reliably claim to know anything. Reid would appeal to those precepts of common sense that the ordinary man would know even before he could start trafficking in “theories.” But not only knew, they were the things he had to take for granted just to get on with the business of life. And so, before the average man could start bantering with David Hume over the meaning of “causation,” he knew his own active powers to cause his own acts to happen.
The argument in Mere Natural Law is that this is where we would find the very ground of the natural law. We find there, as the founders understood, propositions that are true of necessity—the anchoring truths that the ordinary man could recognize at once even if he weren't burdened with a degree in law. But that is what makes it so astonishing that DeGirolami faults me for not offering a book dealing with “the world of the concrete, of practices, particulars, customs, habit and traditions,” on things that he said are “found in the earth.” But as one friend of mine remarked, those words offer a description of this book, not a critique of it. DeGirolami seems not to have read the book's fine foreword by Michael Uhlmann, where he says that “lawyers in general are an anti-philosophical race. They like their philosophy in small, easily digestible doses and tend to disdain anything that smacks of metaphysics.” He thought that “the best way to instruct lawyers and judges about higher things . . . is to stick with specific cases and hypothetical examples drawn from their actual experience. In his voluminous writings over the years, Arkes has repeatedly demonstrated an unusual, indeed brilliant, knack for doing just that.”
What I did in this book was show how the principles of natural law could be known in the way they reveal themselves through concrete cases. We were not in the clouds of abstraction. Socrates was said to have brought philosophy down out of the clouds, so that it could be brought to bear on those practical judgments about the right and wrong, the just and unjust, that arise every day. And the purpose of this book, as DeGirolami surely read me saying, was to bring natural law down out of the clouds, to show how it bears in very precise and concrete ways on such matters as the regulation of speech, the proper dimensions of religious freedom, and even the withholding of medical care from a newborn afflicted with Down syndrome and spina bifida. There was nothing the least foggy about this, and these principles do not become foggy to any man as soon as he puts on the robe of a judge.
DeGirolami curiously must put out of mind the very purpose shown in the design of this book when he reproaches me for not taking the time to point out how I would be differing from a number of other notable figures who have written about the natural law. That would make for a nice long law review article. But apart from causing eyes to glaze over, that kind of writing would have gotten in the way of a book that meant to show how the precepts of common sense threaded through our law in a way that could be understood by ordinary people as well as by lawyers and judges.
DeGirolami faults me for not spending more time quoting from the text of the Constitution, though I do quote from the text and explain why the structure of the Constitution is indeed critical, along with its anchoring principles: I do want to know, for example, whether a State may make its territory available as a naval or military base for a foreign power; I want to know just whom the military will be expected to obey when a president dies in office; and it makes a powerful difference to know that every two and four years there will be an election in this country in war time as well as peace time. But the task of the book is to bring us back, as the American founders were brought back, to those principles that were there before the Constitution, the principles that they had drawn upon in framing the Constitution.
But let me take a critical test of DeGirolami’s lament about the neglect to mention the text. The Supreme Court, late in its last term, finally struck down, for the colleges and universities, that scheme of “racial preferences” that has corrupted our laws and lives for the past forty years and more. The Court found this practice to be finally at odds with the Equal Protection Clause of the Fourteenth Amendment. But DeGirolami, with his interest in history and tradition, knows that the Republican leadership that brought forth the Fourteenth Amendment did not think that the Equal Protection Clause barred racial segregation in schools. Not even in the District of Columbia, where that Congress had plenary control of the schools. And Lyman Trumbull, who managed that bill in the Senate, assured his colleagues that this new Amendment would not threaten those laws in Illinois, as well as Virginia, that barred marriage across racial lines. But we are dealing with the same text. And so the question is, what does the Court know now that the framers of the Fourteenth Amendment did not understand? That takes an explanation. It requires a searching reflection of the grounds on which we could explain what is indeed in principle wrong with racial discrimination, regardless of which race happens to benefit from any policy. The Court had never in fact established what that wrong was in principle. If it had, we would not find clever people in the best law schools trying to offer ingenious schemes for the schools to get around the new holding of the Court. And we would not find lawyers in a state of bewilderment over whether the wrong of engaging racial preferences in schools has any connection to the use of racial preferences in private corporations as well.
DeGirolami is all for a deep plunge into the lived life, the rich, grimy details of real cases. But he shows no special concern for the principles of judgment that will be needed in reaching judgments on those cases. We have details of the way racial preferences worked at Harvard and the University of North Carolina, and we think we know the text that is relevant in the Equal Protection Clause. But we also have, as he says, some deep disagreements, even among conservatives, in explaining where the real wrong in principle is to be found in these cases. And in the face of this disagreement and controversy, what principles of reasoning can be invoked to explain what is a sound and defensible judgment in these cases? I find them where James Wilson, Alexander Hamilton, and John Marshall found them, in those axioms of common sense that had to be the anchoring ground of anything we can reliably know. If DeGirolami wants to take us down to earth, he would find nothing more grounded than that.
I appreciate the gracious things that Marc DeGirolami had to say about my writing based on his reading of the book; but I hope he won’t find me captious in suggesting that he may actually find even more to like—with his criticisms more and more allayed—if he came to it in a second reading.
Hadley Arkes is founder and director of the James Wilson Institute on Natural Rights & the American Founding, and the author of Mere Natural Law.
Image by Matthias Süßen licensed via Creative Commons. Image cropped.
