Anchoring Originalism

By J. Joel Alicea

Thursday, June 22, 2023

 

Mere Natural Law: Originalism and the Anchoring Truths of the Constitution, by Hadley Arkes (Regnery Gateway, 352 pp., $32.99)

 

Is originalism a morally empty jurisprudence? For decades, various scholars working within the natural-law tradition have argued that the answer is “yes.” To these scholars, because originalism purports to resolve constitutional disputes based on an analysis of the Constitution’s text and history, it implausibly attempts to prescind from making moral judgments or — worse — presupposes a form of moral relativism. Now, Amherst professor emeritus Hadley Arkes — one of the long-standing champions of this critique of originalism — has brought forth an elegantly written book to make the case against originalism and in favor of what he sees as an approach to constitutional adjudication that is more consistent with the natural law.

 

Mere Natural Law has all of Arkes’s warmth and charm, and he delivers his criticisms with respect for those with whom he disagrees. But these criticisms are mistaken. His critique of originalism proceeds from an incomplete description of the natural-law tradition, overlooks important distinctions and counter-arguments, and, as a result, misapprehends the implications of the natural law for cases such as Dobbs v. Jackson Women’s Health Organization, the Supreme Court’s 2022 decision overruling Roe v. Wade, and Planned Parenthood v. Casey.

 

Arkes begins by establishing that there are objective moral truths that remain true “in all places and times,” making quick work of moral relativism. In the process, he introduces the concept of “axioms of reason,” which are self-evident principles from which we can deduce further principles. One such axiom is the “Law of Contradiction, that two contradictory propositions cannot both be true.” Arkes contends that “the very ground of Natural Law — and the principles that govern our judgments in Natural Law — can be drawn from precisely the same common sense that is accessible to children and to ordinary folk.” He aims to write a “plainer and more accessible” book “in a style closer” to C. S. Lewis’s Mere Christianity (the inspiration for his title) than to an academic treatise.

 

Arkes draws upon basic principles of reason, as well as almost universally accepted moral truths, to establish a range of propositions. For example, once one accepts the biological fact that a distinct member of the human species exists from the moment of conception, there is no sound basis for distinguishing between an embryo and a newborn baby with respect to their right to life. All attempts to do so will lead either to arbitrary line-drawing (e.g., simultaneously asserting that a condition of dependency is a reason to disregard the life of the unborn but not a reason to disregard the life of the newly born) or to condoning actions that would almost universally be regarded as evil (e.g., permitting the intentional killing of both the unborn and the newly born).

 

All of this is well said. The book proceeds, however, to discuss the relationship between natural law and constitutional adjudication. Here, we immediately encounter a problem: identifying what theory of constitutional adjudication Arkes is arguing against. Notwithstanding the book’s subtitle, it explicitly invokes originalism or original meaning on only six of its 298 pages (including endnotes). Instead, Arkes takes aim at “conservative jurisprudence.” He equates “conservative jurisprudence” with the views of Justices Scalia and Gorsuch, two well-known originalists, and he argues that judges should base their decisions on moral conclusions (e.g., abortion is immoral) without attempting to show that reaching such conclusions is required by the text or history of the relevant constitutional provisions. Indeed, Arkes provides almost no textual or historical analysis of the Constitution in this book, and he disparages appeals to “the historical record” in his assessment of Dobbs. All of this suggests that he is arguing against some version of originalism whenever he criticizes “conservative jurisprudence.”

 

Yet Arkes calls himself an “original originalist,” and he later says that he “would hold then to an originalism that contains the moral ground of the law as that Founding generation understood it.” So perhaps Arkes is arguing against only some forms of originalism and considers himself an originalist of some unspecified sort. It is impossible to say, since he does not define what he means by “originalism” or “conservative jurisprudence.” But given the evidence described above, it is fair to assume that he is arguing against originalism as conventionally understood in legal discourse: Judges should decide constitutional disputes based on the Constitution’s text and original meaning, which precludes application of moral principles that are not otherwise incorporated into or adverted to by the positive law.

 

In arguing against originalism, Arkes tries to show that judges either inevitably must rely on the natural law when deciding constitutional disputes or that they should rely on it to avoid falling into moral relativism. The book is ambiguous about which of those two assertions he is advancing and about whether they are, in fact, distinct claims. But it appears that, for Arkes, they are distinct in at least some formulations, and that he wishes to advance both. It is on these points about American constitutional theory that the book falters.

 

As to the first point, Arkes argues that “judges persistently have to move beyond the text of the Constitution” and draw upon natural-law principles. “One way or another, they are all doing it.” It matters a great deal what precisely he means by this, but unfortunately he does not clarify the point. If he means that, when analyizing the text, judges (including originalists) have to consider historical context — including the natural-law-infused views of those who ratified the Constitution — then he is simply restating a common view among originalists. Or if he means that judges sometimes have to make moral judgments because the text itself directs them to do so, that, again, is a common view among originalists.

 

Most of the time, it seems that Arkes is instead asserting that judges inevitably draw upon self-evident principles of reason. That is true — but it does nothing to address the controversy about the use of natural law in constitutional adjudication. I know of no jurist or scholar who denies that judges rely on principles of reason in adjudicating cases; the controversy is over whether judges must or should apply substantive moral principles not otherwise contained in or adverted to by the positive law. Arkes conflates principles of reason (i.e., requirements for logical thinking, such as the Law of Contradiction) with principles of morality (i.e., requirements for making good choices about how we ought to live, such as “You should not lie”). Principles of reason are required for coherent thinking on any subject, whether that subject is descriptive (e.g., the way volcanoes work) or normative (e.g., the morality of lying). While the natural law is governed by principles of reason, the natural law consists of substantive principles about how we ought to live. It is the latter principles that cause controversy in constitutional adjudication.

 

If Arkes intends to argue that judges inevitably must apply substantive moral principles not otherwise contained in or adverted to by the positive law, he says surprisingly little to advance that claim. In a passage that appears to be aimed at supporting this claim, he argues that it is a self-evident principle that “we should visit punishment only on wrongdoers,” and, from that principle, he deduces that “the evidence for wrongdoing should be tested, in a demanding way, with the canons of reason,” which in turn leads to the conclusion that “people accused of crimes should have access to the evidence and witnesses against them for the sake of rebutting them.” We arrive, according to Arkes, at the conclusion that there would be a right to confront the witnesses against us in a criminal trial “even if it had not been set down in the Sixth Amendment” (emphasis in original). But, of course, the Sixth Amendment does recognize that right, so there is no need to rely on Arkes’s moral argument in enforcing the right to confrontation. Indeed, the approach that Arkes advocates would distort the nature of the right actually recognized by the confrontation clause, since the precise wording of the clause has had significant implications for the way in which the Court has interpreted it over time.

 

This brings us to Arkes’s second argument: Judges should rely on substantive moral principles drawn from the natural law in adjudicating constitutional disputes, since to do otherwise presupposes a form of moral relativism. He asserts that originalists have lost the conviction “that there really [are] genuine moral truths accessible to reason,” such that Dobbs, for example, rests on the assumption that “there is no truth on this matter [of abortion] for judges to declare.” But it is not true that originalism — because it purports to adjudicate cases based on text and history — presupposes moral relativism.

 

From the natural-law perspective, originalism rests on the notion that political authority exists solely to secure the political common good of a society. Because every person in society has an obligation to seek the common good (since it is essential to their own good), and because political authority is the means by which they can secure it, the people of a society are vested with political authority. When the people constitute a government, they transmit a portion of their authority to that government for the sake of the common good, reserving to themselves the power to alter or abolish the government. Because the natural law does not require any particular form of government or allocation of power — even if it may preclude some — the people’s authoritative decisions about those questions take on moral significance. To undermine the allocation of power set by the people is to undermine the people’s legitimate political authority, and that necessarily harms the common good, since the people’s legitimate authority is essential to securing the common good. The only way for public officials to preserve this legitimate authority is to understand the people’s decisions as the people themselves understood those decisions. Originalism rests, at bottom, on our moral obligation to secure the common good and the attendant obligation to preserve legitimate political authority.

 

The enforcement of the original meaning of the Constitution is therefore not a morally indifferent or relativistic act. When the Court in Dobbs held that the 14th Amendment, as originally understood, contains no right to abortion and proceeded to overrule Roe and Casey on that basis, it made a historical claim, to be sure, but that claim’s relevance rested entirely on a moral premise. Dobbs claimed that to recognize a right to abortion found nowhere in the Constitution’s original meaning would be to “usurp the people’s authority,” and that to usurp their authority would be to commit a grave moral wrong, one “deeply damaging” to the common good. When Arkes laments that “the problem for the conservative judges [in Dobbs] was a theory about the rightful and wrongful reach of the judges, quite apart from the moral substance of the case,” he misses the essential point: The rightful and wrongful reach of judges is a matter of moral substance, even though it is not about the moral substance of the underlying dispute (i.e., abortion).

 

Arkes at no point considers any of the natural-law arguments for originalism, even though scholars have offered many (such as the one outlined above). Perhaps the reason he does not do so is that he — remarkably — never discusses the traditional natural-law definition of law as framed by Thomas Aquinas: “an ordinance of reason for the common good, made by him who has care of the community, and promulgated.” That definition is not a matter of linguistic practice; it is a substantive definition of what a law ought to be, given law’s moral purpose. Arkes’s omission of Aquinas’s definition is consistent with his often-idiosyncratic understanding of the natural law, one in which principles of reason are conflated with principles of morality, foundational Thomistic concepts are overlooked, and figures with varying degrees of proximity to the natural-law tradition (e.g., Kant, Lincoln, and assorted Supreme Court justices) are brought together.

 

Had Arkes focused on Aquinas’s definition of law, he would have been forced to ask: Who has care of the community in the United States? That is, who is the legitimate lawmaker in the United States? The answer — as deduced from the natural-law tradition’s teaching on the nature of political authority — is the people, the same people who, the Preamble declares, “ordain[ed] and establish[ed]” our Constitution. Once we understand this, the judicial obligation to obey the Constitution as the people understood it becomes clear — as does the moral force undergirding Dobbs.

 

Arkes asserts that “the insistent theme of conservative jurisprudence has been that the matter of abortion belongs entirely in the states because there is no consensus and no clear truths that bear on the question of taking fetal life.” For the majority in Dobbs to have decided the case based on Roe and Casey’s usurpation of the people’s legitimate authority was not to deny that there are objective moral truths on the question of abortion. It was, rather, to decide the case based on a foundational moral principle — distinct from the morality of abortion — that sufficed to justify the judgment. To conclude that Roe was wrong in declaring a constitutional right to abortion, it was not necessary for Dobbs to declare a constitutional right to life for the unborn child, an issue that was not before the Court.

 

In any event, under the originalist framework required by the natural law, whether there is a constitutional right to life for the unborn would depend primarily on a textual and historical inquiry, not on the objective truth (for that is indeed what it is) that abortion is a profoundly immoral act. From the premise that abortion is immoral it does not follow that federal judges have, as a matter of positive law, the authority to declare it so; the latter point depends on the scope of judicial authority under the original meaning of the Constitution. It is widely acknowledged by scholars that the Constitution, as originally understood, did not empower federal judges to set aside positive law in light of the natural law. Accordingly, it would be a usurpation of power for federal judges to declare that the Constitution protects the unborn based on the immorality of abortion rather than based on the original meaning of the Constitution. And as the natural-law theorist Russell Hittinger observes, “because usurpation is an offense against the common good, it will never do to cite the common good as the reason for usurping the authority.”

 

None of this means, of course, that the natural law leaves federal judges with no choice but to enforce evil laws. They may, for example, recuse if enforcing certain laws would cause them to directly cooperate in evil or cause scandal, or they could resign if a legal system was systematically unjust. But usurping the people’s legitimate authority is not an option in a generally just regime like our own.

 

Arkes set out to write a book about natural law easily accessible to a lay audience, and that commendable purpose might well require some imprecision or silence about some nuances. But the book does not serve its lay readers well when it fails to engage with counter-arguments that they deserve to hear and fails to make distinctions that are crucial for any sound analysis of the relationship between the natural law and the American Constitution.