“A Natural Law Manifesto” -by Hadley Arkes

But it seems to be widely forgotten that the tradition of natural law always made a place for positive law, the law that is "posited" or enacted in any place, and sensitive then to conditions distinctly local. We see signs on the road saying 35 mph or 70 mph, and those numbers have no moral significance. But Kant reminded us that behind the positive law is a deeper natural law that tells us why we would be justified in having a law in the first place. We can grasp the principle that would justify us in restraining the freedom of people to drive in a manner that puts innocent life at hazard. But we translate that principle into a regulation that could apply the principle to the circumstances and terrain before us—70 mph on the open highway, perhaps 35 mph on this winding country road.

But we meet now at a time, when lawyers and judges on the conservative as well as the liberal side have rather clearly rejected natural law, treated it with derision and contempt, as though they could give a coherent account of the law without an account of those underlying moral principles that alone could justify the making of laws on any subject. Our allies on the conservative side retreat to some safe formula of positive law, a focus on the text of the Constitution, or a commitment to "originalism" and tradition. But with that move they transmute the question; they turn jurisprudence into legislative history. They do it because they think it is the most prudent way of protecting the country from the adventures of judges soaring off, inventing new rights, all on the side of the Left, all untethered to any text or to any ground of moral judgment. But in that path there has been no safety, and therefore no prudence, and beyond that, no coherence—no jurisprudence that can give a coherent account of itself. As for the liberal side in our politics, they show an incurable penchant for overriding the positive laws, the laws enacted by people who are elected to make them—laws that may protect nascent human beings in their mothers' wombs, or laws that confine marriage to the commitment of a man and a woman. The Left will offer high sentiment, overriding the laws made by majorities in the name of a higher law or principle. They make some of the sounds of those who hold to natural law, but with one striking omission: they emphatically deny there are moral truths, truths that hold their truth even when they run counter to the will of a majority. Professor Laurence Tribe will simply invoke convictions "powerfully held." Professor Ronald Dworkin will regard instead, as the ultimate foundation of jurisprudence, "a nation's political traditions and culture." Both arguments could readily have encompassed the rightness of slavery. For that institution certainly reflected convictions "powerfully held" and a long-standing feature in the "political traditions and culture" of this country. But some commentators on the liberal side would rather live with that result than appeal to natural law and put in place the recognition of moral truths; truths that may be used to cast judgments on others, even in their sexual lives.

The liberal side in our politics finds its aversion to natural law in the recognition both of moral truths and of “nature.” The orthodoxies of postmodernism and relativism on the American campuses emphatically deny that there is a fixed human nature. “Natural rights” they regard as an ideology of patriarchalism that justified the rule of white males. And “nature,” they say, is “socially constructed” from one place to another according to the vagaries of the local culture. On the conservative side, there seems to have been a critical forgetting that natural law found its grounds in the laws of reason. A president of Amherst College once observed that I had a “theory” of natural law. I remarked to him that when people say things of that kind, they rather imply that they are standing back, wholesomely detached, noticing the “theories” whizzing past them. And somehow they are able to make judgments about the fragments of theories that they regard as plausible or implausible, true or false. I said: take me back to the ground on which you are making those judgments, to the standards of judgment you are using, and you would be led back precisely to those “laws of reason” that I take as the ground of the natural law.

The conservatives fear that judges, licensed to invoke the natural law, will be soaring off, as judges have done, but with no standards to discipline or constrain their appeal to lofty sentiment. It's not merely the liberal activists who doubt that reason has moral truths to discern. The jural conservatives apparently do not themselves have confidence that there is a discipline of reason that offers guidance and constraint on judgment. And yet, they are convinced that "activist judges" have abused the claim to invoke a higher law or natural law. But if they can identify an abuse of natural law, that rather implies that they have standards of judgment accessible to them, standards by which they can tell the difference between the claims of natural law, or the exertions of moral reasoning, that are defensible or spurious, true or false. In that case, we may ask: Why would the conservatives take the antics of the liberal judges as an excuse to abandon the natural law, and the moral ground of the law, rather than claiming the high ground for themselves? Why not take their recoil as a moment to get the liberal judges clear on the difference between a plausible appeal to the principles of natural right and an appeal to a woolly, implausible version? Why not rather expose the pretenders to the higher law of liberal activism as the pretenders, the vendors of false reasoning, that they are?

I come then today, perhaps in the style of Edmund Burke, to make An Appeal from the Old Jurisprudence to the New: from the old jurisprudence, which relied on natural law as a matter of course, to a new conservative jurisprudence that has not only been resistant to natural law, but scorns it. At one level, some of the conservative jurists insist that their concern is merely prudential: Justice Antonin Scalia will say that he esteems the notion of natural law but the problem is there is no agreement on the content of natural law. Far better, he argues, that we simply concentrate on the text of the Constitution, or where the text is silent, on the way in which the text was "originally understood" by the men who framed and ratified it. Hence the doctrine of "originalism." But as I've had the occasion to explain many times over, this notion of agreement or disagreement is built upon one of those things the philosophers understand as a "self-refuting proposition." For it reduces to this claim: "that the very presence of disagreement on any matter of moral consequence indicates the absence of truth." But all I have to do is record my own disagreement with that proposition and that should be enough, on its own terms, to establish its falsity. This country was highly divided on the matter of slavery, or on civil rights in our own time, and that didn't seem to affect people with the sense that it was impossible, under those conditions, to offer a judgment on where justice really lay in these matters.

Beyond that, we’ve had ample evidence by now to see the justices fall into the most heated and polarized divisions over the meaning of words and clauses in the text of the Constitution. We need look only at the deep disagreement among the judges recently on the meaning of the Second Amendment, on the right to bear arms, to say nothing of the partisan passions that spring up over the meaning of such terms as Equal Protection of the Laws, or Due Process of Law. It should be clear that a reliance on the text of the Constitution does not deliver us from serious arguments and deep disagreements. On the other hand, I’d point out that the first principles of natural law are so bound up with the laws—and are often so evident to ordinary people—that they inspire virtually no disagreement. Consider for example that proposition the Scottish philosopher Thomas Reid regarded as one of the truly “first principles” we draw from the logic of moral judgment itself, a principle I’ve restated in this way: that we do not hold people blameworthy or responsible for acts they were powerless to affect. That principle may cover a wide variety of things where people really had no causal powers over their condition or their acts and should not be held culpable. We may argue in different cases as to how powerless or incapable people actually were, but no one doubts the validity of the principle—or doubts that the principle would hold true in all places, public and private, at any time. Wherever we are, it is never tenable to hold someone responsible for a crime committed before he was born, or a crime he was evidently incapable of committing. Axioms of this kind have been so woven into our law that we often fail to notice them any longer. But they stand as striking evidence that the deepest principles of the law do not in fact inspire a deep division in our country. They are understood readily by ordinary people, and are not regarded as inscrutable even by lawyers.

The first generation of our jurists and lawyers gave us remarkable examples of how they made their way, strainlessly and elegantly, to the ground of the natural law in the axioms of our reasoning. They would trace their judgments back to first principles, to the principles that were usually not mentioned in the text of the Constitution, because they were the truths that had to be in place before one could even have a Constitution or a regime of law.

In a throwaway line at the end of his opinion in the landmark case of Gibbons v. Ogden (1824), John Marshall apologized to his readers for spending so much time demonstrating what should stand in the class of an axiom. That is, he assumed that every literate reader out there would know that, before a demonstration or experiment could be offered, certain indemonstrable points had to be in place—indemonstrable because no demonstration could be understood if these points weren't grasped. These were truths that had to be grasped, as the saying went, per se nota, as things true in themselves. That the founders were uncommonly clear on this matter was revealed sufficiently by Alexander Hamilton in that preface he wrote to Federalist 31 on taxation. In the course of that paper, he reached no conclusion different from what John McCain, in our own time, would have reached. But any reader looking at the text would have noticed at once some strikingly different furnishings of mind. For Hamilton put it this way:

“In disquisitions of every kind, there are certain primary truths, or first principles, upon which all subsequent reasonings must depend. These contain an internal evidence which, antecedent to all reflection or combination, commands the assent of the mind.... Of this nature are the maxims in geometry, that “the whole is greater than its part; that things equal to the same are equal to one another; two straight lines cannot enclose a space; and all right angles are equal to each other.” Of the same nature are these other maxims in ethics and politics, that there cannot be an effect without a cause; that the means ought to be proportioned to the end; that every power ought to be commensurate with its object; that there ought to be no limitation of a power destined to effect a purpose which is itself incapable of limitation.”

What we grasp most notably per se nota, as something true in itself, is the anchoring proposition and the touchstone of the laws of reason, "two contradictory propositions cannot both be true." In the same way, we grasp without much strain—and with no serious controversy—these anchoring points in moral judgment and natural law: first, that the language and logic of moral judgment apply only to the domain of freedom, where people are free to choose one path of conduct over another, and so we say again, in a reworking of Thomas Reid, that "we don't hold people blameworthy and responsible for acts they were powerless to affect." And second, we grasp per se nota the truths that stand behind that "proposition," as Lincoln called it, the anchoring proposition of the American republic, "all men are created equal." For we grasp at once that, even in this age of animal liberation we don't sign labor contracts with horses or cows; nor do we seek the informed consent of our household pets before we authorize surgery upon them. But we continue to think that creatures who can give and understand reasons deserve to be ruled through a rendering of reasons or justifications by a government that is compelled to elicit their consent. We can take then, as the anchoring ground of "first principles" those propositions we can grasp per se nota, as true in themselves, or propositions that cannot be denied without falling into self-contradiction.

Those are the grounds to which Lincoln and the founders appealed. They did, elegantly and luminously, what the spokesmen for conservative jurisprudence in our own day insist should never be done. Let me offer just an example or two.

In Federalist 78, Hamilton noted the rule that guided the courts in dealing with statutes in conflict: the statute passed later is presumed to have superseded the law enacted earlier. The same rule does not come into play, of course, with the Constitution, for a Constitution framed earlier would have to be given a logical precedence over the statute that came later. Were that not the case, the Constitution would lose its function, or its logic, as a restraint on the legislative power. But these rules for the interpretation of statutes are nowhere mentioned in the Constitution. As Hamilton remarked, they were "not derived from any positive law, but from the nature and reason of the thing."

In that landmark case of McCulloch v. Maryland (1819), Chief Justice Marshall pointed out that the Constitution gives Congress the power to "punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations." But the question could be raised then as to whether, in a Constitution of enumerated powers, Congress has the power to punish where that authority has not been explicitly given. The question became the occasion for Marshall to move back to the deep axioms of moral judgment and the law. Marshall mused in that vein that the power to establish must entail the power to preserve. If the Congress can establish a system of mails, it must have the power to protect the mails against theft. But then, as Marshall pointed out, the answer must be implicit in the very idea of the power to legislate. A law was binding on everyone in the territory who came within its terms. If a law were not obeyed, and the law not enforced, how was the law "binding"? And if a law was not binding, if it did not entail an obligation to respect it, in what sense was it a "law"? As John Stuart Mill would later point out, we stop using the language of like and dislike and begin using the language of "right" and "wrong" to the extent that we think people may rightly be punished for what they are doing. If we are serious when we declare a certain class of acts to be "wrong," and to bar them with the law, the notion of law itself must entail the possibility that people may be punished for doing the things that the law forbids.

That theme of judges teaching brings me to two dear friends, distinguished jurists and gifted teachers, and yet men who have been scathing in their aversion to natural law, Justice Antonin Scalia and Judge Robert Bork. As I've argued in the past, these jurists have given us some compelling moments in applying the canons of reason to the cases coming before them. They've given us some elegant examples of how natural law might be done even while they've been professing up and down that it cannot be done. I've argued to Justice Scalia that he has done the work of natural law handsomely in cases like Rapanos v. United States (2006), which dealt with the limits on the expansive reach of the Army Corps of Engineers in trying to claim jurisdiction over wetlands, including anything essentially wet. He pointed out that the statutes here never meant to cover "transitory puddles or ephemeral flows of water." But then in response to Justice Kennedy he delivered this telling, Talmudic question: "[W]hat possible linguistic usage would accept that whatever...affects waters of the United States is waters of the United States?" It was an appeal to propositional logic, something not spelled out in the text of the Constitution, but something of evident relevance in helping to establish the limits to the reach of a federal statute.

In District of Columbia v. Heller (2008) three years ago the Supreme Court held that the right in the Second Amendment to keep and bear arms was indeed a right that was confirmed for persons, for individuals, not merely for militias organized by the states. In the course of his opinion for the majority, Justice Scalia appealed to a deep right of self-preservation. In a conversation a while back I remarked that I assumed that he was appealing to the right of an innocent person to fend off an unjustified assault. And he confirmed that that was indeed what he had in mind. But those words on self-preservation were not in the text of the Second Amendment, and so the question arose: Was he appealing to a deep principle that did not depend for its validity on its mention in the text? Or, was he saying that Blackstone and James Wilson invoked that right of self-preservation, and that many people read them at the time?

I don’t think that my friend has settled his answer to that question, but he seems to be tilted to the second—to the evidence in the record that this understanding was so widespread at the founding that it could plausibly be counted as part of the “original understanding.” The hazard here is precisely that this approach converts jurisprudence into legislative history. In the case of the Second Amendment, it redirects us to ask: How many of the men who framed the Second Amendment and voted to ratify it in the states had actually incorporated that understanding expressed by Blackstone, Locke, Hobbes, and others? Well, how many would be enough before we could impute the understanding to the founders and stamp it authoritatively as part of the “original understanding”? In the nature of things, we cannot get an answer to that question. But even if we did, it would not be the answer to the question we are asking: it would not be the answer to the question of whether the laws may cast up barriers to an innocent person trying to make use of lethal force in defending himself against an unjustified assault, if that seems to be the only way of defending himself.

More recently, Robert Bork offered a criticism of President Obama for backing away from a defense of the Defense of Marriage Act (DOMA). Bork was certain, as I am, that the judgment reached by Mr. Obama, on the constitutionality of DOMA, was quite wrong. The president had come to the judgment that it was as wrong to withhold a marriage license from a couple of the same sex as it had been wrong, in an earlier day, to withhold a marriage license from a couple comprising members of different races. Mr. Obama professed to think that the willingness to treat these couples differently from other couples allowed to marry violated the Equal Protection Clause.

In that judgment, I’m emphatically with Robert Bork; I share the view that the president’s argument is quite untenable. But we reach that judgment through paths notably different. Judge Bork would simply ask whether the right articulated in this case was contained in the Constitution, or whether it was originally understood, by the men who drafted and ratified the 14th Amendment: Had it really been understood at the time that that amendment would make it indefensible to confine marriage to one man and one woman? Could we plausibly impute then to the authors of that amendment a willingness to install same-sex marriage? The notion, of course, is quite bizarre. I would have to doubt that any such idea was in the head of anyone who had anything to do with the writing or passage of that amendment. And yet, if we were to be governed on this matter by the “original understanding,” the record here carries a serious embarrassment for the arguments of the “originalists.” Robert Bork harbors no real doubt that it would be contrary to the principles of the Constitution to bar people, through the laws, from marrying across racial lines. But if there is anything that is clear about the original understanding of the 14th Amendment, it is that Lyman Trumbull, who managed that amendment in the Senate, assured his colleagues up and down that nothing in that proposed amendment would call into question those laws in Illinois as well as Virginia that barred interracial marriage. And it seemed to be one of those things firmly understood that the 14th Amendment had no ghost of a chance to be enacted unless Trumbull could credibly offer those assurances to his colleagues and the public.

It's a nice question then for our friends committed to "originalism" as to whether the Court should have decided Loving v. Virginia in 1967 and struck down those laws barring marriage across racial lines. I seriously doubt that Justice Scalia, say, would come down now against deciding that case, and deciding it the way the Court did. But the recognition, surely melancholy for him, is that the Court could reach that decision only by going outside the text of the 14th Amendment and explaining the principle that makes it deeply wrong for a legislature to conclude that the fitness of people to enter marriage could hinge in any way on their race. The question would bring us back to the wrong in principle of racial discrimination: we cannot coherently reach judgments about the worth and deserts of people on the basis of their race, as though race exerted some deterministic control over the conduct of people—as though, if we knew the race of any person, we would know anything of moral significance about him, as in whether he was a good or bad man, who deserved to be welcomed or shunned, praised or blamed. Do we really have any ground, then, on the basis of race, for making guesses about the fitness of anyone to accept the obligations of marriage?

It is no knock on Trumbull that he didn’t see all of the implications that could spring from the principles he was planting in the law. For who among us can? The life of moral experience is a life of discovering, in cases that suddenly illuminate the landscape, implications of our own principles that have heretofore gone unseen. But it would have been necessary to explain the principle here, in order to explain why it was legitimate for the Court to depart from the original understanding of the 14th Amendment and hold invalid that law in Virginia barring marriage between blacks and whites. And yet, that is precisely what our friends holding the banner of “originalism” are so averse to doing. For to move along that line, is to move along a path that takes us outside the text—takes us to principles that need to underlie the text in order to make the text comprehensible and compelling in the cases coming before us. Our friends are so offended by the performance of activist judges, that they would rather take the path of doing legislative history, or getting tangled in arguments over the reading of the historical record, if that will have at least the effect of diverting people from getting lured into the mirage of natural law.

I think we can predict, in the litigation over same-sex marriage, that the courts facing the challenges to traditional marriage will hear the arguments over "original understanding" and quickly brush them aside. The historical record, they will briskly tell us, is not free of controversy. And so where will the argument move? It will move precisely to the point that Bork found indefensible without lingering to explain why it was indefensible. We will be challenged to explain why race was irrelevant to the sexual relation that was central to the joining of bodies, as well as souls, in marriage. At the same time, we would have the task of arguing, in contrast, that the complementarity of the sexes is essential to the purpose, or telos, implicit in the very existence of men and women: that marriage finds its distinct, and most coherent rationale, as a framework of commitment around that central purpose of sexuality, in the begetting and nurturing of children. One way or another the argument will have to make its way to that point, and everyone knows it. The argument will not hinge at any point on the speeches of Lyman Trumbull and the "original understanding" of the 14th Amendment. But if that is the case, we earnestly press the question: what is the purpose or rationale of a mode of jurisprudence that is guaranteed to distract us from the main question in substance, a mode of argument that is bound to be a sure loser in the future as it has been for most of the past 50 years? Is there any purpose beyond this ritual of evasion other than the concern that we divert judges and lawyers from the dangers of taking natural law seriously?

The question has been put earnestly to us, though: would you really come out, at the end, with conclusions different from those that Scalia and the conservative judges would reach? And if not, what is the point?

As it turns out, Justice Scalia has indeed spoken for me in these cases most of the time, and spoken for me grandly. In his critical views on abortion in cases like Webster v. Reproductive Health Services (1989), Planned Parenthood v. Casey (1992), Stenberg v. Carhart (2000), or even in cases touching on abortion, such as Madsen v. Women’s Health Center (1994)and Hill v. Colorado (2000); in his dissents on cases dealing with sexuality and the law in Romer v. Evans (1996)and Lawrence v. Texas (2003);or in his commentaries on assisted suicide in Gonzales v. Oregon (2006)—in all of these instances, to my mind, he touched the right themes in the right way. And he touched something running deep when he remarked in Wabaunsee County v. Umbehr (1996) that, "day by day, case by case, [the Court] is busy designing a Constitution for a country I do not recognize."

Happily, we would find ourselves agreeing with our friends on the Court most of the time. But the claim we are making is that the natural law, or the laws of reason, provide a much firmer ground of principle for our judgments, and if we are right in that claim, we may avoid many of the distractions our friends have encountered as they follow a design to avoid any distinct moral logic or moral ground for their judgments. And in turning away from that path of avoidance, our claim would have to be that we could offer, in some places, a more coherent account of the law we would preserve and shape, where it falls to us to shape it, under the Constitution.

In that vein, we could never have signed on as the Court, in 1971, recast the jurisprudence on speech and civility by incorporating the relativism of Justice Harlan: “One man’s vulgarity is another’s lyric.” We could not have followed our conservative judges as they began to sign on, year by year, to the notion that ordinary people and legislators could make no plausible restrictions based on the “content” of speech. We could not then have joined a Court that cast the protections of the Constitution on the burning of crosses or the burning of the American flag. Nor would we join in draping the protections of the First Amendment on a crowd harassing a family at the funeral of a dead marine with signs saying “Semper fi fags” and “Thank God for Dead Soldiers.”

But the differences in jural perspective that I’m marking off here may have their most profound effect as they reach the most central question that the law may ever reach: who counts as a human person—who counts as the kind of being whose injuries matter? It was the question raised as President Bill Clinton vetoed the bill on partial birth abortion and expressed the deepest concern for the health of the woman denied that procedure. Of that other being present in the surgery, the one whose head was being punctured and the contents sucked out—the assault on the health of that being made no impression on Clinton. The harms didn’t register because the sufferer of the harms did not count in this picture.

But in raising questions of this kind, a jurisprudence with our perspective would pose the question insistently: what is the ground of principle on which the law may remove a whole class of human beings from the circle of rights-bearing beings who may be subject to the protections of the law? Why have so many conservative judges come to assume that the Constitution has nothing to say about the principled grounds on which legislators may withdraw the protections of the law from those small human beings in the womb? I’ve mused in print over the problem of what the judges would have done if the understanding had settled in quite early that those Civil War Amendments applied only to blacks who had become human. For after all, we’ve been told that not everything conceived of humans is human at all times and stages in its life. And so the matter could be returned to the states as the judges declare that they have no more competence in deciding on the beginning of human life than the first nine names in a local telephone directory. Does anyone really think the judges in our own day would have no questions to raise if the states decided that children were more human as they were lighter in complexion, or scored higher on verbal tests? But we know that the judges have the modes of argument readily at hand in a case of that kind to identify grounds that are thoroughly arbitrary in making discriminations here between the human and the not-quite-human, between those with a claim to live and those whose lives may be taken without the need to render a justification. Why then should we suppose that judges in our own day, liberal or conservative, would encounter an inscrutable problem if they found humans in the womb put outside the protections of the law because of their height or weight, because they are lacking limbs or hadn’t acquired yet the facility to speak and do syllogisms? Why then, we must ask, are the men we regard with the highest respect as jurists, so utterly convinced that something in the scheme of jurisprudence and the Constitution somehow bars them from raising that kind of question, the question that pierces to the core of those rights, and those persons, that the Constitution was designed to protect?

We raise then an appeal to our friends doing conservative jurisprudence: you were drawn to the life of the law because you thought it raised questions of the gravest consequence, questions of moral consequence, about the just ordering of our lives, about the things that are just or unjust, right or wrong. And having come this far, why would you ask us or yourselves to settle in with a mode of reasoning about the law that gives us a kind of sing-song morality, a set of slogans pretending to a jural philosophy, and whose main rationale is to avoid the appearance of engaging in moral reasoning? You offer constructions to scale down the project, to look only at the text of the Constitution, or the tradition of holdings by judges, while cautioning us again not to ask the questions that run beneath the surface to the core of things. At best, we may produce in that way decisions that seem by and large to come out the right way. But we cannot give our best reasons, our fullest reasons, the reasons that give the most coherent account of the decisions we are making, the law we are shaping. And the question at the end is: why should you—why should we?—settle for anything so diminished, when measured against the moral seriousness of the questions brought before us?

In the Physics, Aristotle remarked that if the art were in the materials, we would expect to see ships growing out of trees. But ships were part of a world governed by design, by the awareness of ends, and the shaping of reasons. The world of law is part of that same world. And so we offer this appeal from the old jurisprudence to our friends who are offering us their version of conservative jurisprudence: Where in all of this is the art? Where is the understanding you've cultivated, the judgment you've seasoned in experience? Where in all of this would we find the record, to be lingering in time, that we were here: that the law we are preserving would be as comprehensible and compelling, as resonant with common sense, in the next generation as it is in our own, and as it will ever be?

This we may take as our Natural Law Manifesto; this is the challenge we would pose now to our friends in the law. But it is a challenge to join us in a conversation. Some of our friends find something attractive about the very idea of natural law, but they doubt that it is practicable and they are wary of it. To them we say, join us: If we are wrong, you can help show us where we’re wrong. And if we are right, we shall simply discover anew the grounds of law we share more deeply, the grounds of law that have ever been in place.