[Image: “Golden Lady Justice,” Bruges, Belgium by Emmanuel Huybrechts, licensed under CC BY 2.0. No changes made.]
Mere Natural Law: Originalism and the Anchoring Truths of the Constitution by Hadley Arkes. New York: Regnery, 2023. Paperback. 336 pp. $17.65
Hadley Arkes has been a welcome defender of the canons of reason for most of his life, and his latest book, Mere Natural Law,is full of the same clarity, humor and wit which have endeared him to so many readers. The title is an intentional nod to C.S. Lewis’ Mere Christianity. Natural Law, far from being a theory brought down from the clouds, is evident to ordinary people. Manifesting in simple conversations (“give me a bit of your orange, I gave you a bit of mine”). Cicero Aquinas, the Founders, Lincoln—they all believed that the natural law consists of those moral truths which are universally binding to all men at all times. For contemporary Americans, it is most readily made manifest in the Declaration of Independence’s proposition that “all men are created equal.” This, in Arkes’ words, captures the truth that “no man is by nature the ruler of other men in the way they are by nature the ruler of dogs and horses, and that no man can rule over another apart from one’s consent.”[1]
These axioms of moral reason are necessary truths binding at all times and places. Drawing from Aquinas, such principles include the first principle of practical reason (that good be done and evil avoided), as well as the principle of noncontradiction. Arkes himself draws on Immanuel Kant’s contribution to the natural law tradition through his notion of the categorical imperative to emphasize the necessity of its precepts.[2] Some friends and students of Harry Jaffa would criticize the incorporation of Kant within the natural law tradition as a mistake, as the precepts of natural law flow seem to flow from the exertion of will rather than some objective notion of the Good. But if by the “laws of freedom” Kant means those moral laws that provide the parameters of rightly ordered freedom, Kant need not be the boogieman that others have made him out to be.[3] Following the example of Grotius, I think there is value in Kant and consequently Arkes’s emphasis on the a priori logic of necessary moral propositions, which work in tandem with the a posteriori knowledge of moral goodness acquired in daily life.[4]
In this way we understand that it is impossible for reason to operate apart from fundamental moral axioms. Some have criticized Arkes for unfairly conflating substantive moral reasoning with the reasoning involved in positive law adjudication, but that is precisely the point. Positive law itself is wrapped up in the same necessary logical principles which undergird all moral reasoning. The principle of noncontradiction, or the principle that one cannot “hold people blameworthy or responsible for acts for which they are powerless to affect,” are both logical principles that necessarily have moral bearing on positive law.[5]
As Arkes demonstrates, the Founding generation understood these principles of reason to be the foundation of law and politics. In Federalist No. 31, Hamilton referred to the principles of reason as those “primary truths, or first principles, upon which all subsequent reasoning must depend.”[6] James Wilson, Founding Father, legal scholar and Supreme Court Jurist also explicated on the moral logic at the root of law. Already during Wilson’s time people were attempting to draw a separation between the logic of morals and law which would become most clearly ascendant in the positivism of Oliver Wendell Holmes Jr, who famously rejected natural law and the pursuit of the “superlative”.[7] Part of the purpose of James Wilson’s famous Lectures on Law was to establish the moral grounding of the law against the view that the moral did not speak to the legal. Arkes draws for us a telling clarification of James Wilson regarding William Blackstone, who wrote of civil rights as “civil privileges, provided by society, in lieu of natural liberties.” Responding to this point:
“[if we were to credit Blackstone,] the connection between man and his natural rights is intercepted by the institution of civil society… If this view be just a view of things, then, under civil society, man is not only made for, but made by the government: he is nothing but what the society frames; he can claim nothing but what the society provides.”[8]
In clarifying Blackstone, and in inhabiting the tradition of Edward Coke, Thomas Hale, and Edmund Burke, Wilson asserted that while our natural rights are particularized and applied through force of positive law in custom and statute, it is not the positive law which creates them. The Founders understood these so-called “anchoring truths” as operating in tandem with written law, and as existing even if there was no written Constitution. As Johnathan Gienapp writes,
Nothing about the sheer act of reducing constitutions to paper either signaled a clear break from prior constitutional assumption or automatically clarified anything about those new constitutions’ basic attributes…. By unavoidable necessity, the constitution’s meaning was radically underdetermined. Only experience, mediated by the presence of discussion and adjudication, could settle it.[9]
This intuition regarding the Constitutions’ grounding in natural law is actually what laid behind initial objections to the Constitutional Convention. Madison and Hamilton thought that the natural right was already protected in the very structure and underlying logic of checks and balances. To write down the rights we have would perhaps only confuse people into believing that their rights were somehow contingent on their textual declaration in the Constitution—precisely the mistake that Wilson attributed to Blackstone.[10]
This is most manifestly demonstrated in John Marshall’s 1824 opinion in Gibbons v. Ogden, where he apologizes for having spent so much time “in the attempt to demonstrate propositions which may have been thought to be axioms.” Marshall continues,
But this was unavoidable. The conclusion to which we have come, depends on a chain of principles which it was necessary to preserve unbroken; and, although some of them were thought nearly self-sufficient, the magnitude of the question, the weight of character belonging to those from whose judgment we dissent, and the argument at the bar, demanded that we should assume nothing.[11]
The very logic of our nation’s Constitution and law was understood as necessarily bound up in moral reason. Does this mean however that we don’t need the Constitution? The Constitution provides what Aquinas calls the determination of the natural law, or the structure which defines those principles in our context.
Abraham Lincoln articulated this same natural law grounding of our nation’s Constitution drawing on Proverbs 25:11, with Arkes’ own emphasis,
The assertion of that principle [that all men are created equal] at that time was the word, ‘fitly spoken’ which proved an ‘apple of gold’ to us. The Union, the Constitution, are made, not to conceal, or destroy the apple; but to adorn, and preserve it. The picture was made for the apple– not the apple for the picture.[12]
The problem with originalism as it has been traditionally understood, from original intent to public meaning, to even the notion of popular sovereignty which binds us to obey the Constitution, is that it refuses to concede the moral ground on which the logic of constitutional jurisprudence necessarily depends. This was made most readily apparent in the Lincoln-Douglas debates.
In attempting to reconcile anti and pro-slavery powers, Douglas attempted to chart a seemly “neutral” pathway forward grounded in popular sovereignty–the idea that the people would be free to decide for themselves whether to be slave or free.
As Lincoln explained, popular sovereignty is necessarily derived from the natural right of all men to govern themselves. Any statute of the general will which undermines the logic of natural human equality, such as slavery, can never be rendered coherent or properly binding if the states were to try codifying slavery. If slavery were to be secured despite this gross evil and contradiction in principle, it was because this was a lesser evil taken to avoid the even greater evil of disunion.
One cannot stress enough the importance of Arkes’ foray into the Lincoln-Douglas debates in understanding the moral logic of American law. Lincoln ultimately exposes the false neutrality of Douglas’ “popular sovereignty”, and how by making the case that slavery was a legislative choice, Douglas himself was advancing a moral proposition—that slavery was not nearly so heinous for a people that they could not choose it.
Douglas attempted to separate the structure of popular government and law entirely from first principles of natural equality, and by doing so attempted to put will before justice. The popular will dictates the law which becomes justice. Under this view, there is no justice, or natural right, which precedes government. Stephen Douglas was by no means the first to do this. In many ways Douglas was merely a political opportunist. The true intellectual heavy lifting had been done by John C. Calhoun ten years earlier and then later by Alexander Stephens. They understood the logic of the Declaration’s principle of natural equality, and they rejected it. To do so, they had to erect an artifice of historicist and contingent propositions rooted in science and progressivism.
The progressive turn away from natural law towards Nihilism reflects itself most prominently in the Jurisprudence of Oliver Wendell Holmes. Rejecting natural law, he attempted to revive Douglas’ popular sovereignty by channeling Nietzsche’ will to power in self-creation through the political body. As Holmes writes:
for us that the universe has produced us and has within it, as less than it, all that we believe and love. If we think of our existence not as that of a little god outside, but as that of a ganglion within, we have the infinite behind us. It gives us our only but our adequate significance… If our imagination is strong enough to accept the vision of ourselves as parts inseparable from the rest, and to extend our final interest beyond the boundary of our skins, it justifies the sacrifice even of our lives for ends outside of ourselves.[13]
The philosophical pragmatism of Woodrow Wilson and progressive such as John Dewey also captured this moral vacuousness. With the elevation of social science and the separation of ‘fact’ from ‘value’, progressives attempted to erase objective morality, and by doing so the first principles of practical reason human beings necessarily rely on day by day, denying the moral reality of the world in which we move and have our being.
As we see through the example of the Warren Court’s jurisprudence, social science as made manifest through “contingent” or contextual propositions became the foundation of Supreme Court jurisprudence, ignoring the necessary first principles which are infused in the operation and logic of the law. As Arkes writes,
the main confusion that has befogged this subject may be clarified by the distinction between two different kinds of propositions:
-if Amazon moves its offices into the community, the community will prosper
-it is wrong to hold people blameworthy or responsible for acts which they were powerless to affect. (98)
Arkes helps us see manifestly how the problems of DEI can be traced directly to a refusal to ground Civil Rights in the necessary logic of equality in our nation’s Declaration. Most tellingly in Brown v. Board of Education, the Supreme Court ruled segregation in schools as unconstitutional, largely drawing on the work of sociologist Kenneth Clark which seemed to show segregation impaired the sense of self-worth of black children, and by extension had a negative impact on their capacity to learn. To ground Brown on the contingent proposition of learning outcomes however, to Arkes raises the following questions,
What if the children had been separated on the basis of race and their reading scores had gone up? Would segregation have ceased to be wrong? Was the wrong here really contingent on the performance of the children in schools, or was there something wrong with this segregation in principle, quite apart from whether the students do well or badly? And if so, what exactly was the operative principle? It would have made an evident and profound difference to explain that principle—to explain what made it wrong, of necessity, to draw moral inferences about the worth and deserts of people on the basis of attributes based on race.[14]
Much of the trouble begins with Plessy v Ferguson, which failed to clarify the fundamental wrong of arbitrary discrimination. Leaping forward to Loving v. Virginia, the Court could have simply teased out the illogic of miscegenation laws in imposing an arbitrary assignment of moral worth to a person’s race. Instead, it created a positive right to marriage, paving part of the way to Obergefell.[15]The failure to tease out the necessary principle making clear the wrong of discrimination in Brown paved the way to Affirmative Action in Grutter v. Bollinger. Students for Fair Admissions v. Harvard, also failed to articulate the wrong of arbitrary discrimination. There was nothing in principle wrong with Harvard’s race-based quota system. It was merely that other groups were maligned, mainly Asians, that was the problem.
The moral content of our law derived from the fundamental axiom of natural human equality is striking, as is the refusal of the court to acknowledge that logic in the law. In the case of abortion, Roe v. Wade refused to mention (and perhaps neglected to even consider) the brief from the Texas lawyers and the overwhelming embryological evidence for the humanity of the pre-born child.[16] Committing the same error in Plessy, the court went on to construct “viability” as the arbitrary characteristic from which an entire class of human persons was denied their protection under the law. Dobbs, for the great triumph it was, as with Brown and segregation, failed to lay out the fundamental logic and grounding of the naturally evident humanity of the pre-born child. That said, this natural law proposition seems to be implicitly apprehended by the court. Alito’s majority opinion rightly interrogates the arbitrariness of the “viability” standard for the permissibility of abortion.[17] That said, Alito only refers to the child as “a potential life”, and that the wrong at issue with Roe is that “the court usurped the power to address a question of profound moral and social importance that the Constitution unequivocally leaves to the people.”[18]
One cannot, however, simply blame Alito. This is current originalist orthodoxy. Antonin Scalia himself wrote the following on abortion,
The whole argument of abortion opponents is that what the Court calls the fetus and what others call the unborn child is a human life. There is of course no way to determine that as a legal matter; it is in fact a value judgment.[19]
Both Alito and Scalia here make the same fateful error of Stephen Douglas. There can be law which enslaves the people and denies their humanity consistent with the natural equality of man. The fundamental question at stake for Lincoln was “whether the black man is not or is a man.” The logic that follows from the natural equality of man is in our Declaration and Constitution. Any articulation of Constitutional law inconsistent with that underlying natural logic is mistaken.
In the year since the publishing of Hadley Arkes’s Mere Natural Law, welcome attention has been renewed and placed on the role that natural law has to play in American Jurisprudence. Scarred by the moral excesses of the Warren court, conservative textualists have understandably had an aversion to the role of the canons of moral reason in legal interpretation, from Robert Bork famously, to Antonin Scalia. In the wake of originalist Neil Gorsuch’s majority in Bostock, it became clear that originalist tools, without a moral framework for ascertaining what is a human person who bears rights, could be used to enshrine in our law a rival “metaphysic” while also redefining the meaning of “sex” under the Civil Rights Act of 1964.
In the wake of Dobbs, and more recently the Republican dissonance over the Alabama Supreme Court’s recent ruling concerning embryos conceived using IVF, most Republicans, particularly the political class, have failed to grasp the moral principles at the root of each matter. The Republican establishment in many ways has mirrored the errors of the bench, promoting a vacuous notion of freedom and choice void of the moral content of our Christian legal tradition and Founders such as James Wilson viewed as the foundation of the law.
The lesson Professor Arkes gives us is clear: one cannot escape the underlying moral logic at the foundation of the law. Judges must necessarily address substantive moral questions as questions of the law, even if dressed in amoral-sounding legal jargon such as “tiers of scrutiny,” for example. Conservative lawyers and judges who eschew engaging in principled reasoning according to the natural law and instead offer bare positivism to counter their Leftist colleagues are fooling themselves, Arkes cautions, if they believe this practice will convince those Leftist colleagues to alter their own approach. “If ‘conservative’ judges fail to take on this role,” Arkes co-wrote in a statement from 2021, “their colleagues on the courts will continue to serve as schoolmasters of rival doctrines offering a new version of the will to power: a moral relativism brooking no limits, not even those objective truths in nature that distinguish men from women.”[20]
For Originalists to deny their participation in the Dao of C.S. Lewis is to assent to the same incoherent moral vacuousness of Stephen Douglas, and to raise the banner of Nietzschean nihilism.
Stephen Sills is a current M.A. candidate at Hillsdale’s Van Andel School of Statesmanship, having received B.A. degrees in History and Philosophy from Stanford University. He is interested in the history of the American founding, originalism, and the contemporary debates surrounding the role of natural law in Constitutional Jurisprudence. He is a happy native of East Los Angeles, California.
[1] Hadley Arkes, Mere Natural Law: Originalism and the Anchoring Truths of the Constitution (New York: Regnery, 2023), 5
[2] Arkes, Mere Natural Law, 29
[3] Arkes, Mere Natural Law, 64
[4] Hugo Grotius, quoted in From Irenaeus to Grotius: A Source Book in Christian Political Thought 100-1625, eds. Oliver O’Donovan and Joan Lockwood O’Donovan (William B. Eerdmans: Grand Rapids, 2000), 800.
[5] Arkes, Mere Natural Law, 46.
[6] Publius, Federalist No. 31.
[7] Oliver Wendell Holmes Jr., “Natural Law” in Harvard Law Review 32.1 (1918), 40.
[8] Arkes, Mere Natural Law, 7.
[9] Jonathan Gienapp, The Second Creation: Fixing the American Constitution in the Founding Era (Cambridge, Massachusetts: Belknap Press, 2018), 21-22, 122.
[10] Federalist 84
[11] Arkes, Mere Natural Law, 39-40
[12] Abraham Lincoln, The Collected Works of Abraham Lincoln, vol. 4,ed. Roy P. Basler (New Brunswick: Rutgers University Press), 83.
[13] Holmes Jr., “Natural Law,” 43-44.
[14] Arkes, Mere Natural Law, 104.
[15] Arkes, Mere Natural Law, 106
[16] Arkes, Mere Natural Law, 229-30.
[17] Arkes, Mere Natural Law, 238-40
[18] Dobbs v. Jackson Women’s Health Organization, 597 U.S. ___ (2022), majority opinion by Justice Samuel Alito, https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf; quoted in Arkes, Mere Natural Law, 241
[19] Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), dissenting opinion by Justice Antonin Scalia, https://tile.loc.gov/storage-services/service/ll/usrep/usrep505/usrep505833/usrep505833.pdf., quoted in Arkes, Mere Natural Law, 248.
[20] Hadley Arkes, Josh Hammer, Matthew Peterson, and Garrett Snedeker, “A Better Originalism”, The American Mind, 18 March, 2021, https://americanmind.org/features/a-new-conservatism-must-emerge/a-better-originalism/.