AMAC Exclusive – By David P. Deavel
As Independence Day approaches, the Supreme Court’s decisions this week against the Biden college loan forgiveness scheme, race-based decisions in college admissions, and forcing those in jobs involving creative expression to use their talents in service of events—in this case, “same-sex marriages”—that violate their own consciences should have conservatives cheering. They are small steps on the road to sanity. Yet despite relatively good outcomes to these cases, conservatives aren’t getting carried away by the results. A new book by the renowned legal scholar Hadley Arkes gives the road map for more full-throated cheers.
The reasons conservatives are reticent to give three cheers are two. First, while President Biden and the left have been working hard to demonize anybody who criticizes the Department of Justice as attacking an institution central to “our Democracy” and perhaps guilty of domestic terrorism, the Democrats are adhering to their usual double standards in undermining institutions that do not do their will. “Not a normal court,” Joe Biden intoned. He hasn’t quite said the Court is illegitimate, but it’s clearly implied in his statement to Nicole Wallace that he thinks “that some of the court are beginning to realize their legitimacy is being questioned in ways that it hadn’t been questioned in the past.” At least he seemed to reject a court packing scheme, but there is no evidence that he or the left will accept the current decisions in any fashion. About the rejection of his loan-forgiveness scheme, Biden said the Supreme Court “misinterpreted the Constitution.”
Second, some of the decisions, while good, still left room for those on the left to drive a truck through them. Justice Roberts’ decision on affirmative action left a loophole in the end of his decision: “Nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.” Though he added that “universities may not simply establish through the application essays or other means the regime we hold unlawful today,” is there any question that colleges and universities will simply go on with business as usual? Indeed, Harvard is already signaling that they will do precisely this, as are other universities through internal messaging.
While conservatives can do little about rectifying Democratic behavior, the question of what conservative judges can do to set our country on a better footing is the subject of Hadley Arkes’s new book, Mere Natural Law. Arkes, Edward Ney Professor of Jurisprudence Emeritus at Amherst University and the founding director of the James Wilson Institute for Natural Rights and the Founding, is both a friend of a great many of the figures in the conservative legal movement and also a long-standing critic. The basis of his criticism is that the “Originalists,” both those who claim to derive authoritative legal meaning merely from constitutional and legal texts and those who say one must derive it from the texts in their original public meaning, are not original enough. If they are to be what he calls himself, an “original originalist,” they need to reason substantively about the deeper law that the Founders believed undergirded the Constitution they approved.
Yet conservative originalists have by-and-large rejected the idea that they should engage concretely in natural law thinking in their judgments. Arkes notes that the history of the conservative legal movement over the last seventy years has been one of reaction to the “radical remaking of the Constitution by the Warren and Burger courts” by which “the Court managed to unfold, in a long series of cases, a culture of radical ‘autonomy’ detached from any moral principles that could mark the limits of that autonomy.”
While they complained about the extra-Constitutional nature of the decisions, the conservative judicial responses to such supposed “rights” as contraception, abortion, the redefinition of marriage, and even transgenderism have almost always refrained from talking about “the moral substance of the cases.” The conservatives “had quite absorbed the notion that moral judgments ran beyond the proper sphere of judges and the boundaries of jurisprudence itself.” Thus it was that in the case of Obergefell v. Hodges, which established a right to same-sex marriages, Justice Scalia wrote in his dissent, “It is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.”
While it is true, as some critics of Arkes have noted, that Scalia was dealing with a moral issue here—that of the proper establishment of law—what many people will read from such sentiments is a version of relativism: marriage can be anything we want it to be and there is nothing to be said about its substance by judgments. The same goes for the justices opining on abortion from the time of Roe onward. Even in Dobbs, Justice Alito declined to make any substantive claims about abortion: “Our opinion is not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after birth.”
Having fled the ground of substantive moral argumentation, Justice Scalia and other originalists have often fled to the history of the common law and other understandings as if history is any clearer. Yet the problem with this approach is that conservatives end up sounding like Tevye singing, “Tradition!” in Fiddler on the Roof.
It’s all very moving, but just as the daughter ends up marrying the dopey revolutionary without permission, so too will the liberals on the court do what they’re doing. Legal history is a witness to what is right, but its testimony must be verified by another witness: moral reason. Those advancing the radical autonomy revolution are perfectly willing to squash the autonomy of those on the other side since they think they are right.
They aren’t right, of course, but most people will go along with whoever offers a vision. It may not be fair, but the conservative focus on the procedure of law’s promulgation in the absence of substantive argument about law’s content seems less like a vision and more like. . .the kind of arcane droning lawyer talk that most people think is disconnected from reality.
No, what Arkes proposes is the language of natural law. Many people assume, and the left will say, that this is the smuggling of specifically Catholic theological stuff into our supposedly secular state. Arkes (while he is Catholic) shows that this is not true. The Founders, almost all of whom were not Catholic, used this kind of thinking. Arkes appeals especially to James Wilson, who was a great student of the Scottish and Protestant thinker Thomas Reid, but also to other Founders and even Immanuel Kant. He calls this book Mere Natural Law because he is not advancing a particular theory but instead showing how natural law thinking is something all humans do. “One way or another, they are all doing it,” he writes. “The only question is whether it will be done well or badly.”
So how should they do it? Arkes is not writing an encyclopedia of natural law and the courts, so complaints that he doesn’t deal with enough natural law principles seem hollow to me. He appeals to some of the main first principles or axioms of reason in order to show how building from these we can get to substantive legal principles that would help us decide difficult questions. That we ought to do good and avoid evil seems obvious, but Arkes shows how the ignoring of this principle was involved in Stephen Douglas’s defeat by Abraham Lincoln. That no one can be either praised or blamed for that which he had no power to affect or effect is another. This truth anchors his chapter on civil rights, which includes a ringing denunciation of the “‘taking of race into account’ in dispensing benefits and disabilities” in any context. This chapter could be fitly read next to Justice Thomas’s concurrence to Justice Roberts’s decision on affirmative action.
Arkes deals with quite a few other cases, showing how even from a limited number of natural law principles, conservative judges can make substantive cases for the truth in a fashion that will force liberals to deal with the substance of those claims in a serious way and justify the legal standards they propose. Particularly important is his chapter on recasting the conservative argument for religious freedom in such a way that even relatively non-religious people can see why the rights of conscience must be protected. The key is for conservative justices to make their cases and start slipping their principles in so that others can find them, use them, and, occasionally, be convinced by them. He himself provides alternative passages that could have strengthened conservative opinions in Dobbs and Roe. Solzhenitsyn wrote in his Nobel Prize lecture, “One word of truth shall outweigh the world.” But for that to happen, that word must be spoken.
Yet as with the Soviet Union against which Solzhenitsyn struggled, the task of fighting back against the radical autonomy revolution is a long one. If I have a criticism of Arkes, it is of his confidence that the ordinary person in the street will easily see the truth of the natural law. The effects of disfiguring education and the absence of biblical religion from the public conversation over the last few decades have made it difficult for many to easily see those principles of natural law. Even if they are in principle accessible to everyone, whether they are seen as plausible will depend in part on having a healthy portion of the population that believes in nature’s God at least. The growth of atheism in our country is a deleterious sign, for it means a lot of people for whom nature discloses no moral meaning.
Arkes likely knows this. He himself observes, “The law has lived, and continues to live, on the moral capital of our religious teaching, even while the awareness of that connection has fled the memory of most lawyers, or been happily put out of mind by them.” What our country needs, in addition to conservative jurists making substantive arguments, is a proliferation of people who believe and live according to an alternative understanding of “radical autonomy,” the vision of radical autonomy held to by Moses, Aristotle, Jesus, and the Founders. It is an autonomy grounded in the root (radix) of those principles of moral reasoning that we call the natural law, an autonomy that will allow our country to grow and flourish. That will be worth three cheers and more.
David P. Deavel teaches at the University of St. Thomas in Houston, Texas, and is a Senior Contributor at The Imaginative Conservative.