We complete here the exchange between Edward Whelan and Hadley Arkes over the state of Originalism and the rightful place of moral reasoning by the judges. Links in order of publication can be found here, here, here, and here. We complete it with the response below because our friends at National Review Online preferred to end the exchange without Arkes’s response to Whelan’s last critique. We did not think that this critique should go unanswered—and the readers should have now in hand a clearer sense of where this argument comes to focus.
I, too, am a bit melancholy when I find myself in disagreement with Ed Whelan, who has been a good friend—and also an ally who has come to my side in pressing the Born-Alive Infants Protection Act in Congress. This is an argument between friends, and it will continue, no doubt, as an argument among friends. And in that vein, I hope he can forgive me if I point out here that, in his response to my response, he has confirmed every critical part of my argument.
One of the key points against the so-called Originalism we’ve been given is that it has taken, as part of its code, to steer around the questions of moral substance that have been at the heart of the cases that have unsettled the country and our laws (notably, the cases on abortion, same-sex marriage, and transgenderism). The standard line has been that abortion is nowhere mentioned in the Constitution’s text, so federal judges have no ground on which to declare any judgments on the matter. The conservatives steer around the problem because they seem to have lost their confidence that judges can appeal to moral truths. And that is because the other side (of course) won’t credit those truths, or because our own people have lost their own confidence that there really are moral truths that judges can recognize. The appeal to “history” and “tradition” has been precisely to avoid having to explain why any of the principles we are invoking can command our respect as genuine truths.
Now, how do Ed’s responses fit into this grid?
He invokes Antonin Scalia (a dearest friend of us both), in Planned Parenthood v. Casey:
Scalia set forth “two simple facts” that led him to conclude that there is no constitutional right to abortion: “(1) the Constitution says absolutely nothing about it, and (2) the longstanding traditions of American society have permitted it to be legally proscribed.”
Again, the appeal merely to text and tradition. What is notably missing is any attempt to deal with the substance of the issue by doing what the lawyers for Texas in Roe v. Wade did: draw on the findings of embryology, woven with principled reasoning, to show why the laws were justified in casting their protection over the small human beings in the womb. There is nothing in that exercise that is beyond the things that judges do on other occasions when they care enough to show why a law is deeply wrongful—or justified. It was not that Scalia did not care; it was rather because he thought that these moral judgments were beyond the station of judges, especially because abortion was never mentioned in the Constitution. But the point is: Instead of countering my argument, Ed’s examples handsomely confirm it.
I said the conservative judges have steered around the substance of the moral argument because they have lost their confidence that they really have hold of moral truths. And how does Ed counter that? In a string of lines he reduces moral truths to matters of feeling and subjective preferences. First, “that the duty of Supreme Court justices is not to indulge their own moral preferences in interpreting the Constitution.” And second, “[Arkes] thinks it proper for justices to impose their own moral readings on the Constitution.”
In other words, as far as we can tell from this commentary, moral judgments made by judges are merely expressions of personal feelings with no evident claim to truth. For if there were such truths, the judges would not be merely relying on “their own moral preferences” or “their own moral readings.”
If one reduces “moral propositions” in this way, one would at the same time explain—and confirm—why conservative judges steer around these moral questions: because they are not confident that there really are objective moral truths that command our assent even when they run counter to our feelings.
In striking contrast, the American Founders could appeal to a number of anchoring moral truths and saw no reason why those truths should not be part of the reasoning of the judges as they sought to deal with cases. They are, after all, the standards that come into practical play as legislators or judges too deliberate about the things that are just or unjust. I offered in my critique, as just one example, the axiom that James Wilson, Thomas Reid and yes, Immanuel Kant took as the very ground of all moral and legal judgments: that it makes no sense to cast judgments of moral praise or blame on acts that people were powerless to affect. And so, as Thomas Reid put it, “what is done from unavoidable necessity…cannot be the object either of blame or moral approbation.” As I mentioned, that principle runs widely through our laws, and there is no place, no set of circumstances, in which it can fail to be true. James Wilson and John Marshall never assumed that this truth should be barred from the sight of judges and reserved to legislators.
But of course, to say that there are moral truths is not to say that they will be recognized by everyone at all times, especially when people have interests of their own that may prejudice their judgment. As Aquinas noted, even a “self-evident truth” (that two contradictory propositions both cannot be true) may not be “evident” to every “self” happening down the street. Ed Whelan surely falls into a mistake if he thinks that the claim to speak of the moral substance in these cases is somehow refuted by the report that the judges of the Left will not be persuaded by them. Of that, we can bear no illusions. But that is not the sole reason for getting clear, after all, on the grounds of our judgments. These cases test our standards of practical judgment on the things rightful or wrongful, justified or unjustified. When we try to explain our judgments by ruling out any explanation of the anchoring ground of our judgments of right and wrong, we find ourselves settling in with an incoherence, and we hope that it will be good enough to get us through the day. Justice Clark was willing to uphold the Civil Rights Act of 1964 by explaining that racial discrimination would discourage interstate travel by black people, diminish the volume of commerce, and interfere with the interstate traffic in meat. If we cannot supply a better ground for our judgment than that, there is a need to stop and look again.
The conservatives reacting to the Warren and Burger courts found their vice in the willingness to invoke moral reasoning beyond the text of the Constitution and invent new rights. The conservatives have taken the curious line that by engaging in moral reasoning ourselves, we are confirming the pretension of the liberals that moral reasoning is legitimate for judges. The hope apparently is that by foregoing the use of moral reasoning, we may embarrass the Left from surging ahead with its inventiveness. But as Herman Cain used to say, “How has that been working for us?” The fact that the conservatives sought to shun moral reasoning did nothing to stop the Judge Reinhardts of the judiciary from going full speed ahead as they do today. The strategic “genius” of the conservatives was that they would not join the argument to show what was false in the moral theories of the Left; they would simply withdraw from moral reasoning altogether. The result: The other side gave themselves a franchise to making strong moral arguments, usually quite specious, and our side would be grumbling at the side over “raw judicial power.” As my co-authors and I argued earlier this year, in “A Better Originalism,” “Originalism has become, for many, a jurisprudence that prides itself on its careful avoidance of addressing the moral substance at the heart of our gravest cases.” It has been content to settle into the comfort of a “hollow positivism,” and the affectations of a high-minded “loserdom,” as Matthew Peterson has put it.
As a strategy for combatting the “judicial activism” of the Left, it has been a conspicuous failure. And that approach deflects us from settling among ourselves the firmest ground of the judgments we would reach on the gravest questions.
Finally, on what Ed has to say on capital punishment and the Constitution, we are, as a colleague of mine used to say, in “heated agreement.”
But let me say once more for the record: I’ve come to know Ed Whelan well, and I don’t have the slightest doubt for a moment that he thinks—not merely believes—that there are moral truths that we readily grasp through our reason and common sense. Knowing Ed as I do, I would trust his moral reflexes on any matter of consequence. Our debate is really a more refined one: Is moral reasoning something that can be confined only to the political branches, or must it be legitimate and necessary for judges to engage in that reasoning, as it comes to them within the focus of cases? I have already shown in different places that Hamilton, Wilson, and Marshall sought to trace their judgments back to those anchoring moral truths that formed the ground of their judgments. And so my question to friends on the other side is: Why do you think that Hamilton, Marshall, and Wilson had it wrong? What do we know that they never had the wit to see? And why is it that those of us who take the side of Hamilton, Marshall, and Wilson are tagged, with high passion now, as the heretics?
This is the kind of question that conservatives are far more able to handle than the Left are because it is an argument within the family. We should be able to have it while preserving the affection and respect we have long held for one another. I said that Ed and I are in places in “heated agreement,” and my hunch is that we will come closer over time, in a wider zone of heated but tame disagreement.