A bracing constitutional

It was C. S. Lewis who said that “We make men without chests and expect from them virtue and enterprise. We laugh at honor and are shocked to find traitors in our midst.”

To this one might add, “We teach positivism in the law schools and are dismayed to find nihilists on the bench.”

For at least a century now, the judicial front in America’s cold civil war has resembled a certain aspect of the actual Cold War, specifically, the U.S.–Soviet arms-control talks conducted at the nadir of American power. For a while, during the late 1970s, it looked as if the United States might lose the battle against global communism simply by default. In the State Department, the worst sort of bureaucratic proceduralism by professional diplomats (for whom negotiations and compacts are the highest goods, regardless of substance) was exacerbated by the soft anti-Americanism and hard naïveté of the Jimmy Carter administration. The result was a thorough fleecing worthy of The Sting.

Although the Soviets violated every accord they signed and routinely negotiated in bad faith, the American foreign-policy establishment persisted in believing that if they could just get the wording right, the next agreement would do the trick in achieving a demilitarized world and lasting peace. Kenneth Adelman, who took over the arms-control office under Ronald Reagan, compared his predecessors to people who repeatedly received rotten oranges from the store and yet continued to go back to the same store for more oranges. With only a few rare exceptions, “conservative” judges over the last several generations have resembled nothing so much as Carter’s arms negotiators, demonstrating a similarly insatiable appetite for rotten oranges.

In his highly readable new book, Hadley Arkes shows how the same lessons that Ronald Reagan taught in foreign policy apply, mutatis mutandis, to jurisprudence. The defense of law, liberty, and life—contra tyranny, slavery, and annihilation—can succeed only on the basis of a moral conviction that the former are intrinsically superior to the latter. Carter and the Beltway establishment were never quite persuaded that the United States deserved to defeat the Soviets, or at least they could articulate no cogent argument for that proposition, because (notwithstanding Carter’s ostentatious religiosity) the liberal intelligentsia in the Democratic Party long ago repudiated any rational ground of morality in human nature. Reagan’s commitment to strategic superiority—“we win, they lose”—rested on the belief that the patriotic defense of America’s interests coincided with the cause of human freedom as objectively and rationally good.

Thus, the practical effect of this conservative modesty is a kind of unilateral disarmament.

This circuitous way of introducing Professor Arkes’s book is meant to remind us, first, that some fundamental truths must be taught over and over. Second, it bears emphasizing that the arguments over natural law are no less “existential” than the issues raised in the Cold War, for they turn on the very meaning and possibility of self-government. Hence the welcome appearance but also the lamentable necessity of this book. The textual proceduralism that continues to be espoused by most conservative judges today shares the vapid faith in parchment barriers of the arms-control aficionados. Trapped in the same moral equivalence, these jurists believe all questions about “subjective” morality are unanswerable. But like the Soviets of old, today’s domestic Left has no such reservations. Thus, the practical effect of this conservative modesty is a kind of unilateral disarmament. A judge may be the most zealous right-winger in his moral views, but when he shackles himself to legal positivism (the doctrine that justice is whatever the law declares) he becomes—in a memorable description attributed to Robert Frost—“a man too broadminded to take his own side in a quarrel.”

Does this mean that judicial decisions must be reduced to a mere battle of wills? That is what the conservative positivists reply in their defense. Their high-minded and impartial adherence to the text and nothing but the text is, they claim, the only way to preserve the dignity of the court against black-robed gladiatorial combat. Publius reminds us in Federalist 78 that the judiciary is meant to “have neither force nor will, but merely judgment.” Quite so. But everything depends on how these terms are understood. Does abjuring force and will mean a Carteresque inability to distinguish freedom from tyranny, or does judgment—itself a faculty of human reason—recognize a natural order in which the differences between men and women, humans and animals, life and death are objectively true? If our political life were not so deranged, we would see that such distinctions are hardly partisan—or at least shouldn’t be. As Arkes explains, a

jurisprudence of Natural Law would be neither liberal nor conservative. It would be simply anchored in the laws of reason, much as the American Founders understood the principles of law they were drawing upon in shaping the regime and the constitution they brought forth.

Professor Arkes should be well known to the readers of this journal. Since 1987 he has been the Edward Ney Professor of Jurisprudence and American Institutions at Amherst (now emeritus), and at eighty-three—still too brimming with vigorous vim to settle into a life of golf or pickleball—he currently directs the James Wilson Institute on Natural Rights & the American Founding. The author of numerous scintillating books and a hero of the pro-life movement, he has been described as a cross between Thomas Aquinas and Groucho Marx. Fittingly, then, his latest book combines deep insights, wry observations, and humorous vignettes in the service of explicating the central questions of civilized life: what is law, in its ground or essence, and how must law be understood—by citizens no less than judges and lawyers—if republican government is to survive and flourish?

Over the course of eleven chapters, Arkes covers both theory and practice, with sections on civil-rights law, free-speech cases, and developments in religious-liberty jurisprudence. The book shows with admirable clarity that any genuine originalism must acknowledge the natural-rights philosophy of the framers. In addition to examining the Founding Fathers and several philosophical writers, the book makes good use of C. S. Lewis (the title is a nod to Lewis’s Mere Christianity). It also convincingly cites Lincoln to show that the compromises and ambiguities of the Constitution can only be understood in light of the underlying principles of the Declaration of Independence. All legitimate law, according to the founders’ social-compact theory, is meant to reflect, not define, the principles of natural justice, which exist independently of human will. In other words, as Arkes pithily observes, there are “truths that would be there even if there were no Constitution.” What distinguishes this book from some of his previous efforts is an emphasis on the common sense of the matter, showing that there is nothing “foggy or cloudy” about the precepts of natural law, and that upon only a little reflection we will find that we have been speaking and acting within a framework of natural law all along.

This tedious reenactment of the unilateral-disarmament follies cannot continue.

Alas, what may be evident to the common man can be harder to see for those with the disability of higher education. For the conservative base, the hypercautious textualism of most conservative judges seems especially clueless after more than a century of liberal judicial activism. Though, as Arkes notes, in the wake of the 2020 Bostock decision (making transgender citizens a protected class), “conservative lawyers and judges, caught up short in disbelief, were finally suspecting that something had gone awry.” Thus, he explains, “I am writing at a time when people seem to be open, as they have rarely been open, to the simple and compelling things that can be said in introducing them anew to the Natural Law.” Yet even now, many Republican-appointed judges still think their duty is to put the genie of moral wrangling back in the bottle—always volunteering, of course, to go first in the feckless hope that their colleagues on the left will follow suit (although they never do). This tedious reenactment of the unilateral-disarmament follies cannot continue, and Arkes shares the hope of many others on the right that the 2022 Dobbs decision, rejecting a constitutional right to abortion, may signal a decisive shift. (Although, as Arkes shows, the logic of the majority opinion has serious flaws.) This would amount to a recognition that the sterile world of amoral jurisprudence is a delusion.

If so, conservative judges would finally recognize that, even as a matter of textualism, appellate authority and judicial review are legitimate only within a framework of constitutional self-government devised to secure the common good. Isn’t it reasonable to expect our jurists to understand the point of the Constitution? The businessman and aphorist John Shedd astutely observed, “A ship is safe in the harbor, but that’s not what ships are built for.” The point of a constitution, likewise, is not to wrap itself safely in exegetical self-worship— never to venture from the harbor—but to do work: the work of facilitating good government and protecting the free exercise of our natural rights.

Over the course of his many illuminating vignettes and compelling scenarios, one wishes Arkes spent a bit more time explaining how we lost our grasp on the natural law in the first place. But this would require him to draw some hard distinctions between classical wisdom and modern radicalism that he sometimes seems reluctant to make. Any project to recover a common-sense understanding of natural law ought to recognize the fact that modern philosophers are for the most part enemies rather than allies of such a project, because they radically narrow the scope of moral deliberation. Pope Benedict, in his 2006 Regensburg Address, noted modern philosophy’s deleterious “self-limitation of reason, classically expressed in Kant’s Critiques.”

As early as 1981, in a warm review of Arkes’s Philosopher in the City, Harry Jaffa registered the caveat that “Professor Arkes’ occasional reliance on the doctrines of Immanuel Kant is ill-advised and, indeed, inconsistent with his general provision for the role of prudential reasoning.” Jaffa continued:

He seems to me sometimes to confuse Aristotle’s judgment that some things are by nature wrong, with Kant’s requirement that moral judgments be governed by the categorical imperative. . . . Kant allows no room for prudence as an arbiter of the moral and thus he can be found denouncing merely prudent actions as having no real moral worth. Professor Arkes is perfectly sound in his use of Aristotle, and could have found sufficient ground in Aristotelian reasoning for the Kantian or categorical judgments which he erroneously thinks strengthen his case.

I must confess to sharing Jaffa’s mild dismay. Even after all these years, Arkes still persists in clasping to his bosom this problematic German. Having said that, I also repeat Jaffa’s concluding remark that “this is a minor criticism of an otherwise splendid work.”

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This article originally appeared in The New Criterion, Volume 41 Number 10, on page 81
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