A review of Constitutional Illusions and Anchoring Truths: The Touchstone of the Natural Law, by Hadley Arkes
Over the course of a prolific scholarly career that is now in its fifth decade, Hadley Arkes has undertaken to restate the case for natural law in a manner at once philosophically rigorous yet accessible to persons untutored in the refined arts of academic discourse. In the classroom and in his bountiful writing (six books and hundreds of articles, all for the most part comprehensible to intelligent laymen), he has sought to remind audiences of what they already know but have been taught to deny: that, flawed though it may be, human reason can distinguish right from wrong in a reasonably objective and, at times, compelling way—and, what is more, that people of ordinary common sense employ their power of moral reasoning all the time without, so to speak, having to think about it. In an age whose dominant intellectual patterns have been shaped by scientific rationalism and moral skepticism, this is no small task.
As those who have been instructed by his lectures or writings will amply attest, Arkes, the Edward Ney Professor of Jurisprudence and American Institutions at Amherst College, has a knack for converting the implausible into the irrefutable. Few in our time have proven themselves more adept at exposing or refuting the shibboleths of relativism that furnish so much of the postmodern world, and fewer still those who have made so plausible a case for the reasonableness of the natural- law proposition. No small part of his success may be attributed to his considerable Socratic charm. His artful deployment of instructive humor, literary allusions, and illustrations drawn from everyday experience lures readers in, example by example, premise by premise, until gradually their minds lock onto the conclusion that there are necessary moral truths. They are trapped, so to speak, less by his learned authority, or even his charm, than by the compelling force of their own reasoning. Arkes is fond of citing Monsieur Jourdain, the Molière character who was amazed to discover that he had been speaking prose all his life. A similar discovery concerning moral reasoning awaits those who allow themselves to be instructed by Professor Arkes. Among other things, they will learn that the logic that enables them to make moral judgments is indistinguishable from the logic that enables them to know, well, anything.
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Especially since the appearance of his strikingly original First Things in 1986, Arkes has shown himself to be adroit at deconstructing judicial opinions and the dubious moral assumptions on which they often rest-assumptions concerning which judges schooled in the canons of legal positivism are frequently unaware, at times dangerously so. In First Things and diverse other essays, Arkes dismembered Justice Harry Blackmun's Roe v. Wade (1973) rationale in just this fashion. In what is arguably the most powerful and thorough critique of that much written about and wretched example of judicial excess, Arkes's instruction goes beyond the artful parsing of judicial error. He shows not only that the right to abortion lacks any credible historical or constitutional pedigree as a matter of positive law, but that in inventing the right, the Court willy-nilly undermined the moral ground on which all rights ultimately rest. (In this regard, see also Arkes's Natural Rights and the Right to Choose, 2002.) In Arkes's voluminous writing on the Court's abortion jurisprudence, one sees the gradual emergence of a broader theme that has become a distinguishing hallmark of his mature work: that proper interpretation of the Constitution requires movement beyond the text to the moral principles that are logically antecedent to the text and, as an historical matter, appear to have been universally shared by the framers. This teaching is anathema to both liberals and conservatives—to the former because originalism, whether moral or legal, strikes them as a form of tyrannical mind control; to the latter because they want to keep judges as far as possible from the business of legislating morals.
Arkes yields to no man in his disdain for slipshod judicial moralizing. He insists, however, that on issues of critical importance to the polity, legal positivism without reference to the moral axioms that undergird the Constitution cannot adequately secure rights. In addition to First Things, the lineaments of Arkes's argument may be found in two later works,Beyond the Constitution (1990) and The Return of George Sutherland (1994), whose themes are re-echoed on almost every page of Constitutional Illusions and Anchoring Truths. The present work begins invitingly with an essay "On the Novelties of an Old Constitution," in which Arkes casts new light on universally acclaimed principles of constitutional law (such as the prohibition against ex post facto laws, or positive protections for property, contract, or free speech). Among other things, he suggests that these principles necessarily invite us to evaluate the moral reasoning behind them, a process that, he says, would oblige the conscience of free men whether or not these principles were set forth in the positive law as such. The next chapter ("The Natural Law—Again, Ever") elaborates Arkes's rationale for objective moral judgment, in which he chiefly relies on Kant's categorical imperative, which, he believes, can resolve the logomachy of contemporary judicial discourse in favor of natural law. Along the way, he underscores his argument with insights drawn from, among others, Aristotle, Aquinas, Blackstone, the Founding Fathers, Abraham Lincoln, Leo Strauss, and Harry Jaffa. Arkes's novel and characteristically eclectic approach is bound to dissatisfy partisans of various philosophical academies, not least neo-Thomists or neo-Kantians of various stripes. A systematic assessment of Arkes's metaphysics will have to await other hands; to say no more here, on Arkes's showing Kant has virtues that are often ignored by more traditional defenders of natural law.
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In subsequent chapters, Arkes applies his rationale to a number of additional "settled" constitutional doctrines and cases-the much-derided argument for substantive due process as set forth in Lochner v. New York (1905) and the presumption against "prior restraint" as delineated in Near v. Minnesota (1931), the "Pentagon Papers" litigation (1971), and Snepp v. U.S. (1980). The subtlety and force of Arkes's discriminating judgment are here on abundant display. After reading his discussion of these cases, one comes away as if encountering them for the first time. The orthodox view of Lochnerembraced by the Right no less than the Left holds that the Court majority used the 14th Amendment to substitute its subjective economic preferences for those adopted by the New York legislature on the regulation of working hours for bakers. Arkes shows, however, that the Court's "preference" was far from arbitrary; rather, it derived from a moral understanding of a worker's right to his own labor, an understanding that, among others, Abraham Lincoln invoked when reminding his listeners about the evils of slavery. The same understanding was subsequently embedded in the moral logic of the 14th Amendment. Accordingly, Arkes argues, absent some good reason—for example, employment in otherwise unlawful or immoral activities, or when workers are endangered—constitutional presumption should weigh against legislative efforts to limit the right of free labor. In examining the case record and the legislative history of the New York enactment, Arkes finds little reason to abandon the presumption. To the contrary, the available evidence suggests that the legislation merely masked the effort of big business and unions to raise costs for small, family-owned competitors. It was, in short, but a species of what 19th-century jurists rightly derided as "class legislation," the sort of bad law the Constitution was erected to discourage.
Arkes's treatment of the prior restraint cases, which may well be the best thing in print on that otherwise well worn subject, is similarly refreshing. By poking behind the legal briefs in Near and examining the unsavory facts that generated the litigation—it was essentially a case in which a publication sought to blackmail public officials for profit—he demonstrates that prior restraint was not really an issue at all. Notwithstanding, the received doctrine of the case, endlessly parroted and reiterated in other cases and leading First Amendment treatises, came to haunt the Pentagon Papers litigation 40 years later. Instead of examining the moral rationale for or against prior restraint, the justices invoked the Near doctrine as if it were some sort of constitutional talisman. Such was its power that otherwise sensible justices, notwithstanding their fears about injuring national security, felt it necessary to honor a principle that, had it been properly articulated in the first instance in Near, would have enabled them to protect both national security and freedom of the press at the same time. The decision in the Pentagon Papers trial, although widely celebrated by the chattering classes, is in Arkes's view an incoherent jumble that made it needlessly difficult for the government to protect vital intelligence and intelligence sources, while at the same time giving little actual comfort to opponents of prior restraint.
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Arkes then turns to the Snepp case, which massively underscores his indictment, for Snepp silently overruled the rationale that had led to the Near and the Pentagon Papers precedents. In upholding the right of intelligence agencies to censor publications by former employees, the Justices gave new currency to prior restraint as a viable constitutional doctrine, albeit under circumstances that did a grave injustice to a patriotic, indeed heroic, former intelligence officer. Instead of jerking its knee in favor of a formula seemingly mandated by legal positivism, the Court might have spared itself (not to mention the unfortunate Frank Snepp) a good deal of trouble had it bothered, decades before, to examine the ends sought to be protected by the presumption against prior restraint in the first instance. This might have led the Court, Arkes suggests, to retain the presumption while allowing judges to examine the evidence concerning injury beforehand. Under such a rule, publication might be delayed, but no great damage would be done to freedom of the press; but the rights of those who stand to be injured by publication (whether private reputations or national security interests), which can obtain little solace from post-publication lawsuits, would be more adequately protected.
Arkes would be the first to acknowledge that his take on particular cases and controversies can be reasonably disputed, but he brings to the table of constitutional discourse a long missing and badly needed element—the recognition that the text of the Constitution rests on a particular kind of moral reasoning that conservatives ignore at their peril, and at the peril of the very rights they seek to protect. They, and everyone else, should be grateful for Professor Arkes's latest and thoroughly engaging reminder of what he has so aptly termed "first things."