Hadley Arkes Addresses the Moral Reticence of Judicial Conservatism
COMMENTARY: In ‘Mere Natural Law,’ the Catholic convert addresses what has touched off a roiling debate within the conservative legal movement.
Anyone who wants to understand where our constitutional law is going — and why — needs to read Hadley Arkes’ new book, Mere Natural Law (Regnery). Anyone who wants to fully understand today’s Republican presidential ruckus needs to read it, too.
For several decades beginning around 1960, liberals on the Supreme Court remade the Constitution in their own image and likeness. Left-leaning justices then began to ignore the constitutional text and abandon the tradition of its interpretation. They instead foisted secularism and sexual liberation (among other benighted schemes) upon our constitutional law, and thus upon us. Roe v. Wade and the Obergefell same-sex marriage ruling were their signature accomplishments.
Their animating conviction was (as Justice Anthony Kennedy wrote in the majority opinion for 1992’s Planned Parenthood v. Casey) a “right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Evidently, moral rectitude does not depend on the good or evil of what is chosen. It lies instead in a peculiar authenticity about the choosing, that it is me and really me deliberating, choosing, acting.
This is existentialism on steroids.
Morally sensible voters lately supported Republican presidential candidates who would remake the Supreme Court. The judicial counter-philosophy on offer has been “originalism,” which emphasizes the meaning of the constitutional text when it was enacted in the late 18th century (or later, in the case of amendments subsequent to the Bill of Rights). The signature accomplishment of this reclamation is the reversal of Roe last June. Second in importance is the Court’s incremental adornment of what had become a “naked public square,” a shared space rubbed clean of religion by liberal justices. For example, the Supreme Court last summer, in a case about a high-school football coach’s midfield prayer practice, finally repudiated the Lemon test for identifying which laws violate the First Amendment provision against religious “establishments.” (This test is called “Lemon” not because it works poorly – although it does — but because it was handed down in the 1971 case of Lemon v. Kurtzman.) That test amounted to judicially imposed secularism because it prohibited any government act which was intended or even had the main effect of promoting the religious life of the people.
“Originalism” has produced many other good results, too. But same-sex civil marriage is here to stay. There is no discernible appetite among the justices (save for Clarence Thomas) to revisit Obergefell. The Roberts Court has not moved against the tidal wave of digital pornography. It has yet to be heard on “transgender” mutilations of bathroom privacy, single-sex sports competitions and free speech. And Justice Neil Gorsuch — a Trump appointee — wrote in Bostock v. Clayton (2020) that a law banning “sex” discrimination in employment included homosexuality and “transgender” status within the meaning of “sex.”
“With Bostock the conservative legal movement felt the shock of embarrassment running deep,” Arkes writes in his magisterial new book. Arkes taught jurisprudence at Amherst College for a half-century. He now heads up the James Wilson Institute on Natural Rights and the American Founding.
In several books and in countless other publications and speeches across the United States, Arkes has eloquently called our lawmakers home, to faithfully put into effective practice the first principles of morality when it comes to our common life.
Mere Natural Law is the consummation of these efforts. In it, Arkes argues correctly that there is something deeply misguided in today’s judicial conservatism, namely, an abiding adversity to relying upon the natural law when deciding cases. The most telling example of this moral reticence is, ironically, the conservatives’ signature accomplishment. Of the Dobbs ruling, Arkes says:
“Nowhere in this carefully crafted opinion … did the conservative majority pronounce any words on the wrongness of abortion.” Justice Brett Kavanaugh insisted in his concurring opinion that the Constitution is ‘neither pro-life nor pro-choice.’”
This moral reticence has touched off a roiling debate within the conservative legal movement. It is already a fissure. It could widen into a schism. The effects are beginning to be felt in courtrooms and in politics.
Do not be misled by this book’s title. Against an array of (Arkes’ words) moral “skeptics,” “relativists” and even “nihilists,” he points to “moral truths accessible to reason — and not merely airy, high-sounding sentiments, but axioms that guide and govern our most practical judgments.” These “anchoring truths” extend to questions of the “rightful and wrongful governance of human beings.” They include our genuine natural rights upon which our nation was founded. “As Lincoln would say,” Arkes recalls, “the framers had the wit to incorporate, in a revolutionary document, ‘an abstract truth applicable to all times and places.’”
Whence, then, mere natural law? Arkes explains that, just as C.S. Lewis appealed in Mere Christianity to “principles that are accessible even to children,” Arkes writes that he “made the same move, hoping to touch those anchoring truths that virtually anyone can grasp at once” — the truths of natural law. He refers throughout the book to what any “ordinary” person at least implicitly knows about right and wrong, both to indicate the accessibility of natural law and also to fend off the criticism that he would have judges get bogged down in esoteric philosophical speculations for which they have no professional training. When he takes on the stance of philosopher Jean Jacques Rousseau that might can never establish what is truly right, Arkes quips that “a jury of seven-year-olds would grasp the essential point, even without Rousseau’s winged prose.”
Arkes knows that he is in for a fight. He notes that, “[a]long with the Catholic Church, the Natural Law may be branded as the enemy of all things just and rightful in our own day, or simply derided with the confidence that it will no longer be taken seriously.” Mere Natural Law is a clarion call to get serious.
Arkes recognizes that the conservatives’ diagnosis of how we ended up with Roe v. Wade was accurate: Liberal jurists read their own moral convictions into the cases. “[C]onservatives recoiled from the moral substance of what was done,” he writes. “[B]ut they took care to say almost nothing about the moral substance of the cases.” For them, “the major fault in this long train of decisions remaking the law and our culture was not with the specious moral reasoning employed by the other side but with the fact that moral reasoning had been used at all.”
The conservatives’ remedy to bad moral philosophy was abstinence. They would eschew altogether avowed reliance upon the natural law in their decisions. This self-denial is obvious in Dobbs. It is also apparent in Obergefell, where the Court’s leading “originalist” wrote a passionate dissent, which, Arkes points out, omitted any “substantive defense of marriage as … the union of one man and one woman.” The Court has no useful understanding of public morality either. That deficit is one main reason why the conservatives are nearly paralyzed on the pornography issue.
The Court’s conservatives have done the polity a wonderful service by finally ridding our constitutional law of the secularism that the liberals imposed upon us starting in 1962, in the seismic school-prayer decision, Engel v. Vitale. But the Court has not produced anything like a definition of religion or unequivocally stated that religion is good.
Arkes includes in Mere Natural Law an insightful chapter on “Recasting Religious Freedom.” There, and especially also in chapters on race discrimination and affirmative action, as well as one titled “Speech and the Erosion of Relativism,” Arkes shows deftly that sometimes the judicial tonic for bad philosophy has to be good philosophy — not no philosophy. The truth is that, very often, a judge cannot faithfully interpret the Constitution without answering a moral philosophical question which the text squarely poses but which it does not answer.
For example: The 14th Amendment explicitly guarantees the “equal protection” of homicide laws to every “person.” But when do “persons” begin? The text does not say. The ratifiers of that amendment took for granted that, by saying “person,” they had identified a natural kind or class of God’s creatures, that they had extended the law’s canopy over everyone — all human beings. The constitutional question about abortion is wholly transparent for the moral truth of the matter: Do persons really begin at conception? If they do (and they do), then the unborn have a constitutional right to life, just as you and I have.
Critics of Arkes are likely to lead with the familiar charge that “natural law” is just a code word for conservatism, if not for what they would deride specifically as outmoded Catholic morality. A fit reply is suggested by something Francis George said upon his arrival in Chicago to become its archbishop. A reporter asked him if he was a “liberal or a conservative.” The cardinal answered: “The faith is neither liberal nor conservative. The faith is true. I shall preach the faith.”
Hadley Arkes writes that, to “restore an understanding of Natural Law in our own time is not, then, to bring forth another version of “conservative jurisprudence. For that 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.”