In 2021, JWI begins a collaborative partnership with the Liberty Fund’s online journal, Law & Liberty. Led by its Director, Richard Reinsch, Law & Liberty has become one of the premier journals on the Right for writing on jurisprudence, politics, and the culture. With this feature piece, Prof. Hadley Arkes opens our first symposium with Law and Liberty. Both Law & Liberty and JWI will host entries in the symposia on our respective websites. Responses to Prof. Arkes from members of the JWI family will follow in the coming weeks.
I had, in December, a letter from a good friend who has long been a leading figure of the law in one of the most prestigious firms in Washington. He has been following for a while my writings put forth under our James Wilson Institute on Natural Rights & the American Founding. Arguments on natural law still come as a surprise, especially for lawyers of my own age, for they were schooled at a time when the reigning doctrines in the law simply dismissed natural law in a derisive way.
My friend was kind enough to give me a bouquet at the beginning by saying that “you articulate your position brilliantly”; still, he said, he found it “difficult.” He found it difficult for reasons that have become, by now, quite familiar, including points that I had heard from my beloved, late friend Antonin Scalia. As with Scalia, he was concerned, as he said, about “giving free rein to life tenure Justice to apply their own understanding of natural law.” That reservation about the powers of judges is a point of caution I share. My friend contrasted the tempting judicial discretion offered by natural law with the prudence of what he aptly called “a value of respecting the process by which civil law is established in our democratic system.” He joins Scalia by favoring the positive law, the law made by the men and women elected in legislatures and executive positions—or by the people themselves in referenda. The grave concern here has been with a tendency to remove from the political arena the issues that form the weightiest questions in our public life. On this point, there is no difference between my friend and me, and I find a certain joy now in recalling to him that the natural law makes a critical, necessary place for the positive law put in place by legislators and executives. And it explained, as Lincoln explained, why we may be obliged to obey even a bad law until it can be changed in a legitimate way.
With these points raised in a familiar way by a good friend whom I deeply respect—and one of the most accomplished lawyers I know—I thought that he deserved something more from me than a polite and cryptic note in return. And so I sought, in a compressed way, to give that Apologia pro Sua Vita –that defense of my life: an attempt to explain, even to a skeptical friend, why I have been expending my remaining energy and wit in this vineyard of restoring the understanding of natural law among lawyers and judges.
I hope you’ll take me at my word when I say how touched I am to hear from you—that you’ve been willing to carve out the time from a fiercely busy schedule in order to write to me seriously on this matter. And it was precisely because it was a serious letter, earnestly offered by an accomplished friend, that I thought it warranted more time of my own to respond more fully.
In the first place, you raise that old argument that I’d hear from Nino Scalia: that we can’t get a “consensus” on the principles that natural law would bring to bear on cases. Scalia’s friends would say in return, “Did you get a consensus on that proposition?! Did you take a survey? If you had, I didn’t get my ballot, and if I had received a ballot, you would not have had a consensus.” I’m not the first one to have made this point that the argument reduces to this proposition: that “the presence of disagreement must mark the absence of truth.” But of course I would have to disagree with that proposition, and by its own terms that would be quite enough to expose its falsity. It’s what the philosophers call a “self-refuting proposition.”
Clearly, Scalia had not taken a survey to gauge whether there was a consensus on the deep axioms of natural law. He offered his statement as something he regarded as evidently sensible and true in itself—or as Alexander Hamilton put it, it was one of those propositions “which antecedent to all reflection or combination commands the assent of the mind.” Hamilton referred to those kinds of axioms as “primary truths, or first principles, upon which all subsequent reasonings must depend.” And when we find the ground of our judgments—as Hamilton, John Marshall and James Wilson did—in axioms of this kind, which must true of necessity… then we have found again the very ground of the natural law.
But now, deliciously, we have Neil Gorsuch’s new book in which he acknowledges that people guided by Originalism will often disagree about a serious matter at issue. And yet that presence of disagreement does nothing to dislodge the conviction that, even in the presence of disagreement, Originalism has real truths to discern.
And so, no, it doesn’t say anything alarming or dismissive, to say that people working in natural law may fall into disagreement, especially as they try to apply the principles to cases. None of this dislodges the claim that reason has truths to discern.
As we go further into your note, you seem to me to be assuming that I’m simply drawing on various “theories” of natural law (theories that often drift off into the clouds). But I’m closer to Thomas Reid and my late, dear friend Daniel Robinson in taking this matter back to those deep principles of “common sense,” as Reid conveyed them so clearly: they touch the understandings so fundamental that every functional person is simply compelled to take them for granted in getting on with the business of life. And so, before we start bantering with David Hume about the meaning of “causation,” the ordinary man knows his own active powers to cause his own acts to happen. The natural law, as Reid—and Hamilton and Wilson—understood it, finds its ground in those axioms of common sense so evident that people grasp them at once. And they form the ground of what we would need to know before we start trafficking in “theories.”
The prime thing to consider here is the point that Thomas Reid and Kant made in different ways as the truly first principle of moral and legal judgment: that it makes no sense to cast judgments on people who lack the power to cause those acts to happen. As Reid put it, “[T]o call a person to account, to approve, or disapprove of his conduct, who had no power to do good or ill, is absurd.” Reid said that “No axiom of Euclid appears more evident than this.” As I’ve argued, that proposition runs through many parts of our law—not only in the insanity defense but in establishing the wrong in principle of racial discrimination. That proposition, as I say, runs deeply in our law even though it’s not in the Constitution. The point has been made often that the Pythagorean theorem was there to be known even before Pythagoras discovered it. In that vein would we doubt for a moment that this “first principle” of moral and legal judgment is there, even if Reid and Kant had not put it into words?
Beyond that, I’d say it was categorical: even if judges and juries were corrupted or incompetent and produced wrong judgments while working with this principle, the principle itself would have to be part of anything we call “a regime of law.”
Let me bring you back then to that example I served up to you last time we talked: Edwards v. California (1941), a case on blocking the indigent from coming into California during the Depression. The Court was unanimous in striking down the statute. Jimmy Byrnes wrote for the Court and invoked the Commerce Clause as the ground of the judgment. In their separate concurrences Justices William O. Douglas and Robert Jackson were snide in disparaging the Commerce Clause as the ground of the argument. The Justices were tearing at each other in arguing whether the judgment would be found in the Privileges and Immunities Clause or the Equal Protection clause.
But the fascinating thing, which curiously escaped the notice of the judges was that the underlying moral structure of their arguments was entirely the same. Despite the clause they invoked, the arguments pivoted at the same place: Both Byrnes and Jackson acknowledge, even under the Commerce Clause or the Privileges and Immunities Clause, the states would retain an authority to bar certain classes of people into their territory. Byrnes cited the old Miln case, Mayor of New York v. Miln (1837), to mention “paupers” and people carrying disease. In the same way, Jackson pointed out that the states may legitimately bar the movement of felons fleeing from prosecution, and people carrying contagion. And each of the arguments culminated in the same point: that we cannot draw moral inferences about the worth of people as though poverty exerted a deterministic force in controlling the moral acts of anyone. But neither Byrnes nor Jackson could explain that principle.
It is, I think, the same principle that is bound up with the recognition that from a person’s height or weight, from his coloring, or even from his deafness or disability, we cannot draw any moral inference that we are dealing with a good or bad man, one who deserves to be praised or blamed, welcomed or shunned. For reasons that are simply part of the way we are constituted, these features cannot exert a “deterministic” force in controlling the moral conduct of anyone. In the Edwards case the judgment hinged on that point for both Byrnes and Jackson. For Byrnes: “Poverty and immorality are not synonymous.” Or: “…we do not think that it will now be seriously contended that, because a person is without employment and without funds, he constitutes a ‘moral pestilence.’”
“Indigence”, in itself, is neither a source of rights nor a basis for denying them. The mere state of being without funds is a neutral fact — constitutionally an irrelevance, like race, creed, or color. …I think California had no right to make the condition of Duncan’s purse, with no evidence of violation by him of any law or social policy which caused it, the basis of excluding him or of punishing one who extended him aid.
Again the moment of recognition comes in seeing that, in the way we are constituted by nature, these attributes of height, weight, coloring, disabilities, just cannot determine the character of anyone. This principle threads through our cases far more widely than people seem to have noticed. It was the principle at work in the Baby Jane Doe case on Long Island in the early 80s, a case on the withholding of medical care from a child born with spina bifida and Down’s syndrome. The Reagan Administration made it clear that, if medical care was withheld because the condition was judged to be “inoperable,” there was no issue. The Administration would not be making the case for heroic and futile surgery. But if the medical care had been withheld because it was thought that a child afflicted with spina bifida and Down’s syndrome had “a life not worth living,” that was not a medical judgment but a moral judgment. And it was deeply wrong because it drew a moral inference from conditions that could not “determine” anything in the character of the child—or its possibilities for leading even a diminished life with moral purpose.
So much in our law hinges on that principle, and yet that principle, decisive in the Edwards case, is nowhere contained in the text of the Constitution. I would plead to you then that this is where the work of the natural law is done: to explain that deeper principle, with an anchoring axiom that was there before the Constitution—and would be there even if there were no Constitution.
And so I’d put the question to you again as I did last time: how would you have resolved this case without going beyond the text to explain that principle? If you had, you were doing nothing less than the work of the natural law. Nothing exotic, nothing inscrutable in all of this; just a more demanding example of the work that judges do every day. But doing it in a style closer to that of Hamilton, Marshall, and Wilson: with a heightened awareness of the lines that connect their decisions to those anchoring axioms of the law and practical judgment.
But you raise, with probing questions, this vexing matter of the Bostock case on transgenderism. I certainly agree with you that the text of the Civil Rights Acts should have governed this case as far as it went. And there is reason to give the leading authority to that text and the positive law. But we’re simply reminded here that the natural law has always taught the need for the positive law. As Kant explained, behind any positive law is a deeper principle that tells us why it would be justified to have a law on any subject in the first place. We may readily grasp a principle that tells us why we should not put innocent life at risk by driving at speeds that raise the dangers. But there is a need to translate that principle into a positive rule that applies to the terrain and circumstances before us. It may be 35 mph on a winding country road, but 70 on a highway.
At a conference I attended several years ago, this question was earnestly raised by a student: what is there in the positive law that rightly elicits our obligation to obey it, as positive law? In other words, what would put the positive laws in the United States on a higher plane than the positive law in Stalin’s Russia? Would it make a difference that the positive law was made by an elected legislature, reflecting the deep principle that any rightful governance over human beings must depend on the “consent of the governed”: that no man is by nature the ruler of other men in the way that humans must be rulers over horses and dogs. That was the meaning of “all men are created equal” and that “proposition,” as Lincoln said, was “the father of all moral principle” among us. No respect we accord to the positive law in this country would make any moral sense if it were detached from that underlying principle of the natural law.
And yet, with a remarkable openness to prudence, the natural law has always recognized that the positive law may have to make an accommodation with certain evils for the sake of containing or compressing them. And so, there was that old line among jurists: that slavery was clearly wrong in the natural law, and it could be sustained then only by the positive law. Justice Joseph Story had argued that slavery could not be reconciled with any system of justice, and yet he felt obliged to enforce the Fugitive Slave Clause of the Constitution. For as Lincoln had put it, that clause was “nominated in the bond,” and we wouldn’t have had this Union, with these offices, without making that accommodation.
But, may I argue to you that this high respect for the positive law still may not explain the way the courts had to deal with the matter of the transgendered. As the Bostock case approached, I warned that the liberals would play the Lyman Trumbull card: Trumbull had to assure his colleagues in the Senate that nothing in that Fourteenth Amendment would challenge those laws in Illinois as well as Virginia that barred marriage across racial lines. When the Court struck down those laws in Loving v. Virginia (1967), it could not cite the “original” understanding of the Framers in support of its view. This was a problem for Scalia. Obviously, we have now a more amplified view of the Equal Protection of the Laws and discriminations based on race. I anticipated that the liberals would argue that, in the same way, we now have a more amplified view of what we mean by “discrimination on the basis of sex.” The only way to counter that argument, I’d claim, is to appeal to the objective truth, grounded in nature about the differences that must ever separate males from females.
As the then-Cardinal Ratzinger once explained, there has not always been a Hungary or Italy, but as long as there are human beings there will be men and women. And that becomes the firmest ground in explaining what we could mean by “sex” in any statute. For it marks the telos, or the inescapable reason that humans–and other animals—must be constituted as males and females. That is the far more compelling answer to the question of the law and the transgendered—more compelling than canvassing what dictionaries had to say on the meaning of “sex” in 1964. Dictionaries may change with the fashion and usage. But those differences in sex must ever exist if we are to exist.
That sets things up, though, for that fine hypothetical you raised at the end: What if the legislature actually embraced this understanding of sex and barred discrimination against the transgendered as well? For the reasons I’ve already given here, I would agree with you entirely that the statute should govern—unless it runs aground in the same objective truth that marks the inescapable meaning of “sex.” Let us look soberly at the cases: ordinary people, employers and workers, are being faced with heavy fines and humiliation —and a denial of their religious freedom— if they refuse to speak the deep untruth that people can truly change themselves from men into women, and women into men—and do it all through a sheer assertion of the Will.
And so yes, I’d go to the rescue of these litigants by invoking the objective truth that marks the very meaning of sex—and puts innocent people in danger of punishment if they will not renounce it.
What this adds up to, I guess, is that I’d appeal to you in this vein: that you have etched a brilliant career as you have worked in a field that is underlain, at every turn, by the premises of natural law. The apt metaphor may come from the late David Foster Wallace, playing on a joke: One fish, encountering another, asks, “how’s the water.” And the other fish says “what is water?” The fish may have no awareness that he lives in a medium of water as opposed to anything else. And a judge may have little awareness that his work is done every day —as his life is lived every day—in a medium pervaded by natural law.
I’m sorry I’ve run on so long, but as I said, it’s your fault for raising these serious questions—and my fault for not summoning more powers of compression in answering them. But at the end I think: it seems all the more important, that you come in with me, even at the edges, in some way, in this project on natural law, for it would be good for me to have your wise and skeptical voice when I’ll need to hear it.