The end of June brings with it the end of the Supreme Court’s 2022-2023 term, a point during which court-watchers reflect on the high court’s decisions. Recently, conservatives have reflected on the court’s rulings with a feeling of satisfaction, knowing that a majority of originalists and textualists on the bench will keep the court from drifting too far from this country’s Constitution and its laws.
But one conservative scholar has pointed out a potential failure of originalism and textualism. Hadley Arkes, the Edward N. Ney professor of jurisprudence and director of the James Wilson Institute on Natural Rights and the American Founding, explains that conservative judges enamored by originalism and textualism might find themselves abandoning moral reasoning in the process.
That is, they might make the same mistake that pragmatist judges like Oliver Wendell Holmes did a century ago. Holmes famously speculated “whether it would not be a gain if every word of moral significance could be banished from the law altogether.” According to Holmes, moral reasoning distracts us from the “path of the law.”
If we are to be good jurists, judges, and advocates, we must stick to the path of the law — we must stick to the business of predicting what government will tolerate or sanction in particular social circumstances. The morality of acts or omissions, Holmes explains, is a separate question; it is a tangential spur, a byway apt to lead one away from the path of sound jurisprudence.
For over a century, American jurisprudence followed Holmes’ path. We have worked to exorcize substantive morality from the work of the lawyer and judge. While litigants and jurists frequently invoke concepts of procedural morality — i.e., fairness — they have been reluctant to invoke objective moral norms as they litigate and adjudicate. Even in the most fraught culture-war disputes, judges — especially conservatives — are quick to sidestep moral questions in favor of procedural debates or positivist textualism.
Arkes Advises a Course Correction
To all those traveling down Holmes’ path, Arkes displays a “Wrong Way” sign. Arkes argues in his new book that moral reasoning is neither out of bounds nor out of reach for the American jurist. This new volume, Mere Natural Law: Originalism and the Anchoring Truths of the Constitution, presents Arkes’ case against the positivism outlined by Holmes, as well as the shortcomings of the positivist textualism popular among conservative judges.
Mere Natural Law is a collection of essays illustrating a few simple propositions. First, certain moral principles — the “anchoring truths” of natural law — are part of good jurisprudence. Second, judges (even lawyers!) can readily grasp these anchoring truths. Third, the U.S. Constitution presupposes the axiomatic and accessible nature of these truths. And fourth, 20th- and 21st-century American jurisprudence (especially within conservative circles) unnecessarily neglects these anchors.
Once we remind ourselves of the truth of these first principles, Arkes contends, we can step off the path marked off by Holmes — we can turn off the relativistic, positivistic, historicist road to nihilism.
The Fight for Anchoring Truths
Arkes lays out some of the elementary principles of natural law that are foundational to jurisprudence (and Constitutional interpretation) in an easy, conversational style. Using vignettes and anecdotes to color his argument, Arkes contends that certain propositions are fundamental to any just regime and that the Constitution’s framers understood them as such. A few he mentions include:
- The human person, i.e., the creature that law aims at protecting, is constituted of males and females.
- We cannot hold people blameworthy or responsible for acts they were powerless to effect.
- Good is to be done and evil is to be avoided.
According to Arkes, these propositions are axiomatic. Jurists should not ignore them just because they cannot be found in the text of the Constitution or the laws. After all, they serve as the foundation for the Constitution and the laws themselves. By returning to these anchoring truths, Arkes maintains, judges can develop a healthier jurisprudence informed by right reason.
I worry whether we have traveled down Holmes’ path for so long that we are caught in deep, well-worn ruts from which escape will be extremely difficult. Arkes’ light and enjoyable prose at times downplays the challenge we face when attempting to incorporate these foundational principles into contemporary legal debates.
The fact that humans are biologically male or female carries no normative weight in a culture of expressive individualism. Holding groups responsible for events outside their power (e.g., historical racial injustices) is undeniably in vogue. And when goodness amounts to nothing more than the object of individual desires or “value judgments,” substantive moral debate is nothing other than a battle of wills.
Arkes insists we can always grasp basic principles of morality. But as St. Thomas Aquinas points out, sin, concupiscence, and society’s vices can blind us to their reality.
This worry is not a knock on Arkes’ book. It is full of insightful commentary on contemporary American jurisprudence and its unfortunate departure from that of the founding generation.
And Arkes addresses the critique often posed against his approach to natural law jurisprudence: How are lawyers and judges supposed to use natural law reasoning in their day-to-day work? By drawing from legal precedent, Arkes provides examples of natural law reasoning in action, which can serve as models for contemporary and future jurists to emulate.
Unlike the search for statutory or constitutional “intent,” “purpose,” or “pragmatic effect” found in other approaches to juridical interpretation, judges should interpret all law through the lens of natural law. In the same way that a Catholic theologian ought to read Holy Scripture through the lens of the life of the church, the legal scholar ought to read the Constitution and law through the lens of natural law, without which law could not exist. Natural law jurisprudence does not require us to “read into” the law foreign, extrinsic principles; it requires us to read the law attuned to its moral foundations.
Recovering from Relativism
Another of the book’s highlights is Arkes’ attack on relativistic approaches to freedom of speech and religion. Arkes calls us back to a time when we understood that speech and religion were aimed at truth. Exercises in speech and religion could thus be restricted for sufficient justification if they do not advance that goal. An immoral act does not get a pass simply because it is prescribed by a religion, and harmful, vulgar speech does not get a pass simply because it is speech.
Arkes’ push for substantive morality within freedom of speech and religion jurisprudence will likely unnerve some conservatives. Conservative judges have taken pride in “value-neutral” approaches to questions of law and jurisprudence. This neutrality, they hope, will permit substantive moral debate within democratic and popular avenues and prevent unelected judges from imposing their vision of morality on society writ large. And they know that preventing morals-based restrictions on speech and religion especially matters when the reigning morality is actively hostile to conservatism.
When the morality of progressivism replaces the morality of natural law, subjecting speech and religious freedom to substantive moral requirements is a recipe for the suppression of conservative religion and speech. In a world where moral condemnation of sexual sins in itself is considered a harm; where it is hate speech to claim that physiological facts have more normative value than psychological states; where seeking equality before the law is white supremacy — why should we weaken the few protections we have?
One answer is to note that courts are already invoking moral claims — and even “natural law” — to justify, for example, a natural right to abortion. In other words, leftists invoke substantive (though mistaken) morality in order to support their jurisprudence and achieve their favored policy outcomes.
Lawyers and judges have shown a willingness to venture off Holmes’ positivist, amoral path. Unless they correct course with reference to the anchoring truths that Arkes mentions in his book, American jurisprudence may wander even further from the Constitution and its underlying moral foundation.
If we want to safely steer ourselves back onto the path of prudence and right reason, we need something we can rely on for guidance. Arkes redirects our attention to the anchoring truths at the foundation of law, which we can use (to mix the metaphor) as navigational stars as we correct our course.