[book cover]Bill at Shadows and Symbols suggested to me in a comment to my post “A Pocket Constitution” last year that I might flesh out my emerging understanding of natural law with suggestions on how it might affect the adjudication of specific constitutional cases. I’m not qualified to make those suggestions, but Amherst professor Hadley Arkes is. As if on cue, Arkes recently published Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law (Cambridge 2010), a rewarding and frustrating collection of essays about a few lines of Supreme Court cases, some of which have and some of which have not been decided on natural law principles.

Arkes’s book broadened my understanding of what some of the Founding generation of writers and jurists meant by natural law principles. He catches Hamilton describing the principle that later statutes are presumed to supersede earlier ones where they conflict as “not derived from any positive law, but from the nature and reason of the thing.” (25, quoting Federalist No. 78.) Hamilton also justifies as anchored in “the general principles of law and reason” the rule that legislatures cannot overturn a verdict but may “prescribe a new rule for future cases.” (Id., quoting Federalist No. 81). Judges are often “doing natural law,” Arkes says, when they apply common principles of statutory construction, and he quotes Blackstone, who heavily influenced the Founders, as having recourse to “the law of nature and reason.” In other words, legal theorists of the Founders’ generation understood many common rules of statutory construction as well as the rule against ex post facto laws as examples of natural law.

That generation also tried to ground their constitutional opinions in natural law principles, sometimes doing so when recourse to the Constitution’s language, from a modern jurisprudential viewpoint, would have been enough. Arkes points out that, in Fletcher v. Peck, the Supreme Court could have struck down an ex post facto law by recourse to the Contracts Clause, but Chief Justice John Marshall “did something far more elegant: He sought to show that the Contracts Clause could be drawn deductively from the principle on ex post facto laws” (27, emphasis original). A concurring opinion in Fletcher v. Peck by Justice Johnson declined to even consider application of the Contracts Clause. “But I do it on a general principle, on the reason and nature of things: a principle which will impose laws even on the Deity,” Johnson wrote. Arkes argues – convincingly, I think – that reasoning from first principles is an invaluable and lost art.

Supreme Court justices today, especially the more conservative ones, wish to ground their constitutional decisions on Constitutional language. The practice is commendable and to some extent axiomatic, but such an approach, if it wholly displaces grounding decisions on natural law principles, is also dangerous in the long run. Courts construe statutory provisions by looking first for their plain meaning in the context of the entire statute, but courts should not treat constitutions as statutes, Arkes argues. Unlike statutes, constitutions are not the creation of positive law:

As Locke put it in his Second Treatise, “the constitution of the legislative being the original and supreme act of the society,” it had to be “antecedent to all positive laws.” The power to make the positive law is defined by the Constitution, but the Constitution itself cannot spring then from the positive law (24).

The danger is this: if judges have recourse to only Constitutional provisions, they will think that the Constitution is the source of our liberties. The Constitution, though, at its highest level is but an expression of the liberties we were born with, not as Americans but as men.

The debate over a bill of rights during the Constitution’s larger ratification debate demonstrates the prevalence of the natural law position at that time. The Federalists’ chief argument against including a bill of rights in the Constitution, Arkes reminds us, is that such an enumeration would bring down important natural rights to the level of positive law. Rulers seeking to infringe a right so enumerated would have a ready target in specific language, and rulers seeking to infringe a right not enumerated would argue that, had the people wished to recognize such a right, they would have included it in the Constitution’s bill of rights (25 – 26).

Arkes spends half of his essays examining modern constitutional jurisprudence, particularly the law regarding privacy and prior restraint. The chapter on privacy describes how beholden Griswold and Roe are to the universally derided Lochner v. New York case (1905) in which a laissez faire Supreme Court struck down a statute if felt was overly zealous in regulating business. Lochner established substantive due process – the same due process that the Roe court used to strike down a state statute protecting unborn children. The chapter is full of irony, starting with the idea that Griswold and Roe, which “mark the center, the core, of liberal jurisprudence in our own time,” are dependent on the extremely conservative and out-of-fashion Lochner holding. The chapter offers many ancillary ironies:

Bork referred to judges who were willing to strike down legislation – or in effect “make up” the Constitution – because they did not “like” the result. Whether it was intentional or merely reflexive, Bork was backing into the language of positivism – the language that reduced reasoned judgments to “emotivism,” to matters essentially of “likes” and “dislikes.” (81)

Justice Hugo Black, Franklin Roosevelt’s first appointment to the Supreme Court, [was] the most emphatic, unreconstructed, opponent of “substantive due” process. He was also, therefore, the most implacable opponent of natural law. (82) . . . He was a vigorous dissenter in the Griswold case [based on his objection to substantive due process]. (83)

In our own day, Bork and William Rehnquist have come closer than any other judges in sharing Hugo Black’s perspective, which is why it may be aptly said that Rehnquist and Bork might have been the last judges of the New Deal. (82)

. . . the argument for abortion requires an appeal to what may be called the “logic of natural rights”: It requires an appeal to an understanding of rights that does not depend on the positive law made by majorities voting in legislatures or even the positive law of the Constitution. (84)

One gets the feeling, after reading how Lochner intersects with Griswold and Roe, that Arkes believes the entire mess could have been avoided if both sides accepted the Founders’ principles of natural law.

I found the book’s most helpful essay as chapter two, “Natural Law – Again, Ever,” in which Arkes sets out how we moderns and postmoderns can discern a natural law when we see it. Arkes draws principally from Aristotle, Aquinas, and Kant to define moral laws as “the laws of reason, the canons of logic, that command our judgment in the domain of freedom.” Laws of reason are “anchored in the law of contradiction” (65). They are based on deduction and not observation or induction, and are laws because “they have the force of being inescapably true” (64). For instance, if a judge declares that he would not pass on moral questions in the absence of a consensus, Arkes would argue that the judge’s declaration amounts to a moral judgment made without such a consensus. The judge’s approach would, therefore, run afoul of the law of contradiction.

The logic of morals (for morality – that is, a proper “understanding of things that [are] higher and lower in human nature” (44) – is at the heart of natural law) has two fundamental implications: “that moral judgments cast upon others make sense only if we can assume that people were free to form their own acts; that we may not hold people blameworthy or responsible for acts they were powerless to affect” (65 – 66). Racial discrimination violates not just positive law today but first principles always because it presumes that a member of the race in question is morally inferior to the rest of humanity and therefore is not responsible for his or her actions.

Arkes distinguishes natural law from “regularities in nature, or [from] generalizations about the behavior of humans over time, drawn from the checkered history of our species” (44). Notions such as “survival of the fittest” and a fish’s propensity to swim don’t amount to natural rights, therefore. Much or all of natural law may be summarized in “all men are created equal” since it acknowledges traits in mankind that are associated with God and other traits that are associated with beasts. A moral awareness takes in ways in which we are like God and ways in which we are like beasts. Natural law depends on a distinction between man and beasts because only man can “give reasons over matters of right and wrong.” Natural law does not merely manage mankind by managing what is worst about it. It appeals instead to “the better angels of our nature,” to paraphrase Lincoln (45) – if not to any angels in us, then at least to the part of us that can recognize a moral argument to our disadvantage that does not violate the law of contradiction.

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I mentioned at the outset that Constitutional Illusions is in some sense a frustrating collection of essays. Besides the simplistic analogies that sometimes introduce or frame his chapters and the confusing lack of transitions from topic sentences to proof in many of the paragraphs making up his arguments, the book’s frequent, gratuitous championing of modern American conservatism and debunking of liberalism is a distraction from and sometimes a contradiction to its natural law thesis. Arkes’s sense of outrage over how the press handled Richard Nixon, for instance, dominates the final chapter that he entitles “Conclusion and Afterword.” He concludes his conclusion by saying, “But my purpose here is not to make a new defense of Richard Nixon in Watergate,” when no other reading of the chapter but the contrary is possible.

All of which begs the question: why is the argument over natural law almost entirely within conservative circles? As I’ve written elsewhere, most American conservative leaders on the bench and elsewhere refute natural law, and the Tea Party seems ready to join in the same nihilistic, majority-driven Constitutional jurisprudence that Bork and Rehnquist have advocated. At least liberal judges who advocate something like a “living constitution” understand the need for first principles, even if they aren’t the same set of principles advocated throughout the centuries from Aristotle through Locke.

Arkes should understand this. He explores the ironies of Roe, as I mention above, and he finds that liberal justices now sound more like the natural rights practitioners of our country’s first century than do the conservatives.

The Civil War is being refought in some sense within conservative circles between natural rights advocates like Harry Jaffa who find in Lincoln’s political philosophy a restatement of natural law, and states’ rights advocates like most Republican officeholders and jurists today who, whether they like it or not, find their philosophical forebears in the antifederalist and secessionist movements from the first eighty years of our country’s history. Where do progressives fit in? How do they answer the charge that the Living Constitution model stems from a rejection of the Declaration of Independence and the Constitution as tainted by their support of slavery? Are conservatives on both sides of the natural rights divide correct in dismissing the progressives’ notion of constitutionality as irrelevant?

Do today’s progressives see themselves as outside of the debates that have recurred perennially over the last two-hundred-plus years? Do Hamilton vs. Jefferson, Clay vs. Jackson, and Lincoln vs. Douglas leave progressives cold? For better or worse, Tea Partiers are dressing up in colonial outfits and championing a certain understanding of what the Founders fought and died for. Conservatives in my youth cornered the market on the American flag. Are today’s progressives willing to cede the Declaration of Independence and the Constitution, too?


Posted February 13, 2011.