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Politics Foreign Affairs Culture Fellows Program

‘Mere Natural Law’ and the Anchoring Truths of Constitutional Order

Hadley Arkes’s latest is a cogent argument for why “originalism is not enough.”

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(EQRoy/Shutterstock)

Mere Natural Law: Originalism and the Anchoring Truths of the Constitution, by Hadley Arkes, Regnery Gateway, 352 pages.

The American political class appears hopelessly compromised by corrosive self-interest and divisive partisanship. Our elites swear an oath to uphold and defend the U.S. Constitution, yet strangely lack consensus on the nature of that document. All the while, despite apparent political faction and multigenerational culture war, the basic governing philosophy of our elites appears oddly fixed, with the American people merely allowed to choose the speed at which they hasten political disorder but prohibited from correcting course.

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What if there were another way? What if we could recover a true constitutional consensus that was not only more faithful to America’s Founders, but also consonant with the pre-Enlightenment classical legal tradition? Can we imagine our political class, once more able to fulfill their oaths to the Constitution, exercising power not for the private good of some but for the common good of the whole political community?

In Mere Natural Law: Originalism and the Anchoring Truths of the Constitution, political philosopher Hadley Arkes argues persuasively that America’s constitutional past, our once-robust practice of the classical law, offers a better guide for restoring our constitutional order than the false binaries of left-positivism or right-positivism that have made our present debates so tiresome. In effect, Arkes wants to emphasize that the classical legal tradition is at once more capable of delivering the justice purportedly sought by living constitutionalists and more faithful than originalists to original public meaning, the letter of the text, and the legitimacy of the regime. Mere Natural Law is Arkes’s appeal to a rising generation of American lawyers, judges, and political theorists to discover that our classical legal tradition makes true political order possible through the harmonious unity of moral reason and the positive law.

Michael M. Uhlmann praises Arkes in his foreword for showing “how comfortably the language of law and morals intersected in an earlier era” and why this must be so, for “the positive law in each instance presupposes a certain kind of moral logic.” Arkes, Uhlmann writes, reveals “the nature of positive-law reasoning before Oliver Wendell Holmes, Jr.”—the U.S. Supreme Court Justice who infamously declared, “if my fellow citizens want to go to Hell I will help them. It’s my job”—and before theorists like H.L.A. Hart and Arthur Allen Leff came to dominate mainstream legal thought.

American law and politics, as much as the culture they shape, are no longer generative, because we have come to accept a false binary of morally unbound left-positivism on the one hand and morally indifferent right-positivism on the other. Arkes points out that each are, in practice, little more than factions within a single ideological uniparty. These factions fail to nurture the roots of political order because each are rooted, in different ways, in Melian-style majoritarian assumptions, according to which the “strong do what they can and the weak suffer what they must.” 

Natural rights and natural law thus find themselves scorned by left and right alike, which settle into agreement with Leff’s conclusion that “there cannot be any normative system ultimately based on anything except human will.” Arkes, by contrast, shows why the natural law and the classical legal tradition make possible a constitutional order, one based on substantive rather than merely procedural ends and universal moral truths pertaining to all human persons in every era. A classical jurisprudence will “be simply anchored in the laws of reason,” starting with the conscience’s innate apprehension of the first principle of practical reason, to do good and avoid evil, and following by deduction to provide the rational super-structure for political order.

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Arkes cites Bostock as an inspiration for Mere Natural Law, writing of his surprise that “what was missing was any recognition that this decision struck at the very meaning of ‘the human person’ as we are constituted by nature as males and females.” In Bostock, right-positivists and left-positivists alike collaborated to enshrine a morally substantive, albeit fundamentally disordered, view of the human person into law. The Bostock majority’s refusal to acknowledge the fundamental reality of human persons as male and female neatly captures the positivist delusion that sheer human will can remake reality by unmaking nature.

First-time readers will savor Arkes’s unmatched talent for so lightly carrying the reader through practically the sweep of American constitutional law while drawing out its underlying moral axioms. And longtime readers can look forward to his reintroduction of James Wilson as natural law proponent par excellence among the American Founders, as well as his revisiting of Lincoln’s role as perhaps America’s most successful expositor of natural rights and natural law in facing down the evil of slavery.

As timeless as Arkes’s latest contribution to natural law and the classical legal tradition is, it is Arkes’s penultimate chapter on Roe as well as his concluding chapter on Dobbs and the future of abortion jurisprudence that are perhaps his most instructive. Arkes endeavors to re-establish “the classic connection between the logic of morals and the logic of law,” to accept that “when we come to the recognition that it is wrong for anyone, for everyone, to torture a child, we lay the groundwork for forbidding that wrong to anyone, to everyone.” Arkes laments that abortion remains so constitutionally contentious, particularly to purportedly conservative jurists who, in effect, should judge with greater confidence precisely because they know better.

While praising much of Justice Alito’s majority opinion in Dobbs, Arkes laments the Supreme Court’s affected uncertainty about human life and natural rights. “Lincoln famously said, of the gravest issue of his day,” Arkes writes, “that the question was ‘whether the black man is not or is a man.’” The resolution to this question turned on acceptance of the moral truth that all men are truly created equal, yet today the Court professes agnosticism over whether the pre-born child is a person. Despite reversing the injustice of Roe, the majority in Dobbs tacitly affirmed the pro-abortion view that abortion and constitutional justice are compatible. Worse, the Court made abortion into a political issue to be resolved on the basis of “value judgements” untethered from any anchoring truths concerning the reality of “when that life in the womb becomes fully human.” Dobbs is illustrative of Arkes’s conviction that “originalism is not enough.”

The majority in Dobbs could have affirmed that “law finds its justification in protecting human life” and that the pre-born child, in fact, exists. Arkes writes, “To say such a thing…offers nothing that does not flow from the very rationale and character of law.” Yet the Court “carefully avoided” stating a simple sentence of fact along the lines that, “the offspring in the womb cannot be anything but a human being from its first moments, and not merely a part of the mother's body.” Arkes points out that by avoiding this anchoring truth in Dobbs, the Court failed to supply “the ground of justification for the states in casting the protections of law on the unborn child.” Consequently, federal and state lawmakers have been left to contend over competing “beliefs” concerning the pre-born person in a debate that can only turn on the political recognition of a final truth concerning the rightness or wrongness of abortion. 

As Arkes shows, the Court has routinely pronounced on issues of moral substance in landmark cases ranging from Brown to Griswold to Loving—but not in Dobbs, where it feigned a sudden indifference to the beating heart of the case. Arkes believes, nevertheless, that Justice Alito has supplied the “rudiments of a principled argument on abortion” that may yet “awaken again the powers to think anew, even in the blue states.” It will be necessary, however, to reject the “simple vulgarity” implicit in Dobbs, “that there is no truth on this matter for judges to declare, and so we simply respect the laws that the people in the states have enacted for themselves, almost regardless of what they are.”

Arkes wants to awaken the conscience to a higher conception of our constitutional order. By rejecting the view that law is merely “the decree of those with the power to make it”, we open ourselves to a rediscovery of universal truths concerning rightness and wrongness, concerning human life rightly lived in a political community, embedded in the very fabric of our reality. In the act of consciously working out the moral substance and application of law for the common good of all human persons, we move toward restoring coherence to our political order.

Mere Natural Law may be profitably read alongside his many other works, including The Philosopher in the City, First Things: An Inquiry into the First Principles of Morals and Justice, and Natural Rights and the Right to Choose.