In his latest Public Discourse article, Matthew Franck took up my critique on “substantive due process” in the manner in which I was trusting he would. The point of the encounter was to try to think through exactly why this is such a vexing and divisive issue for conservatives. But I’m not sure that, by the end, our readers would have a clear enough sense of where that difference stands and why it matters. What is notably missing, for example, are some of our gravest issues where we can see those differences played out in a striking way: abortion and marriage. On that, more in a moment.
Franck hopes that a clear sense of “substantive due process” will protect us from judges who, swollen with their authority, try to move beyond the constraints of both reason and the Constitution. The crises come as those judges deliver decisions that alter the moral terms on which we live and remake our culture. The main danger he sees is the temptation to move beyond the text of the Constitution to those deep principles of lawfulness not contained in the text. My favorite example would be “presumed innocent until proven guilty.” In principles like these, he finds the vapors of—brace yourself—“natural law” or “natural rights,” with the claim to know moral truths.
Franck shows his skepticism of these truths by his distrust of giving judges—or anyone else—the authority to invoke them. He thinks that we are more likely to find our security if we can induce judges to respect certain properties that mark the character of law, rightly understood. Those are properties that may be found in a “law” quite apart from the substance of the policies that the law is enacting. The properties are mainly these: a law should be generally applicable; it should be impersonal and not announce judgments on particular persons; it should be prospective.
Now, as I pointed out in my own piece, most of these defining properties are not contained in the text of the Constitution. Only the last one is contained indirectly, for the Constitution bars “ex post facto laws.” But that provision was added over the objection of James Wilson and Oliver Ellsworth. They thought there was no need to set down this principle, for anyone familiar with the law would know that this principle on ex post facto laws was one of those deep principles of lawfulness. It would be part of any regime of law, regardless of whether it was set down in the Constitution.
Franck’s fine insight was to show, in his reading of the historical record, that judges avoided “substantive due process” by relying simply on these defining properties of law. He remarks that I don’t contest this reading of history. Indeed, I’d be perfectly happy to stipulate my acceptance of the historical account he has given. But the issue here is not a historical one. Rather, I would point out that Franck can give us this reading of the record only because he finds the judges relying—and relying decisively—on principles of lawfulness that are not contained in the Constitution.
Since they are not contained in the text, what makes these tests authoritative, true, rightful for us in measuring what is indeed a valid and legitimate law? Franck says they are known to us through “centuries of juridical reflection on the meaning of the expressions ‘law of the land’ and ‘due process.’” But have those reflections given us something we are obliged to respect because they are true—or because they are old? To put it another way: Are these principles of law binding on us because they mark the “meaning of law settled in this Anglo-American tribe of ours”? Or do we think that their truth is bound up with the very logic of law? Would we not expect these properties to be part of anything that plausibly calls itself “the rule of law”?
The Logic of the Law
My guess is that Franck would say that these are real truths that enduringly mark the character of law. And that would make it fair enough for me to turn back to Franck the question he posed to me: Would he be depending here on the likelihood these telling principles will seem “rationally as right and just—to five Justices of the Supreme Court”? When Franck is persuaded that his own position is anchored in truths bound up with the logic of law, he doesn’t seem to fret over whether they will be recognized by every judge happening down the street or coming into brief authority.
So why would he offer some good-natured sneering and ribbing at precisely the same kinds of axioms that I’ve taken as the ground of my own teaching? I have not invoked any “theories” of natural law. I’ve taken as the ground of natural rights precisely those axioms of reason that were understood by Alexander Hamilton, John Marshall, and James Wilson at the Founding.
In Federalist No. 78, Hamilton noted that we work under the rule that a later statute supersedes an earlier one, but that with the Constitution the rule is reversed: the Constitution coming earlier must be able to override the statute coming later, or it loses its meaning and function as a control of the legislative power. Hamilton asked, how do we know this when this rule is not part of the positive law of the Constitution? As Hamilton remarked, these rules were “not derived from any positive law, but from the nature and reason of the thing.”
Once Franck has put in place the true principles that judges can understand even though they are not in the text, it is hard to see why he would resist, say, the move of Harlan Stone in Skinner v. Oklahoma, a 1942 case on the sterilization of chicken thieves. In his concurring opinion striking down this law on sterilization, Stone thought that, before a legislature could impose this compulsory surgery as a penalty, it should provide some evidence to justify its assumption that this form of thievery was genetically transmissible. Franck would arm judges with the authority to judge whether any statute meets the stringent moral requirements of a “law.” But in that case, what is there in his scheme that would make it unreasonable for Stone to raise that searching question about the reason and justification for this law on sterilization? Which is to say, why would it be illegitimate to employ the same modes of reason to test the substance of the law?
Does that mean that I would be on the side of favoring, as Franck charges, “a judicial power to invalidate legislative policy choices”? Yes, of course, but so too would all of my friends who thought that the Supreme Court should strike down Obamacare three years ago in NFIB v. Sebelius.
Abortion and Marriage
But let’s take this matter back finally to those issues of abortion and marriage. In his fine book, Slavery, Abortion, and the Politics of Constitutional Meaning, Justin Dyer quoted William Prosser in his famous Handbook on Torts:
Medical authority has recognized long since that the child is in existence from the moment of conception, and for many purposes its existence is recognized by the law. . . . the unborn child in the path of an automobile is as much a person in the street as the mother.
As Dyer reminds us, the Attorney General of Texas, defending the statute in Roe v. Wade, was no less precise in drawing on the textbooks in embryology in making exactly the same case. The state of Texas drew on a combination of scientific evidence and moral reasoning that would have been quite enough to show why those laws protecting the unborn were eminently justified. Now, why would that not have been a fully legitimate ground on which the Supreme Court could sustain that law on abortion in Texas? What is there that makes this mode of reasoning less legitimate than simply falling back on that familiar line of “conservative jurisprudence”: that “abortion is nowhere mentioned in the text of the Constitution, and therefore a federal court had no grounds on which to reach the subject”?
The same argument has been trotted out again over the Obergefell case to point out that the Constitution says nothing about “marriage.” But the embarrassment for this argument is that the Constitution said nothing about marriage back in 1967 when the Supreme Court struck down the laws in Virginia that barred marriage across racial lines (Loving v. Virginia). No conservative on the bench today is willing to say that the Court had it wrong in that case. Nor does any of them complain that a small crew of lawyers in that case took that matter out of the political arena and the judgment of voters.
The partisans of same-sex marriage contend that the refusal to accept same-sex marriage reveals the same wrongful discrimination as the racial discrimination in Loving. But defenders of conjugal marriage have vigorously denied that analogy, insisting that race has no bearing on the competence and character of people to enter into marriage, while the natural complementarity of the sexes marks the very telos or meaning of “sex”—and the most coherent, defensible understanding of “marriage.” The dissenting judges in Obergefell had to counter the majority by engaging directly with that question of what marriage is.
When seen in this way, the argument over marriage in the courts should have drawn deeply on the kinds of arguments offered by Sherif Girgis, Ryan Anderson, and Robert George in What Is Marriage? That would have been nothing less than an argument over the “substance” of what constitutes marriage. Whether or not that argument would have succeeded, it would have been a more coherent way of engaging the argument on the other side, instead of retreating to the formulaic and empty moral claim that “marriage” is not mentioned in the text of the Constitution. If the argument had been waged on those terms, we would find today that the people recoiling from Obergefell would at least be clearer on what is the heart of the question. They would not be spending their outrage in complaints over procedure and the move to “take the question out of the political arena.”
In examples of this kind, we may see more exactly where this argument over “substantive due process” will have its practical bearing. Are we clear on what is actually the central question of moral significance in these cases, the question of where the substance of justice truly lies? In the same way, are we clear on the regime of law we are trying to shape?
To adapt an old line from a common law judge, I can’t be sure that this exchange between Franck and me has settled this question. But I hope it may put the matter in a state in which our judgments may yet converge.
Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College and the Founder of the James Wilson Institute on Natural Rights & the American Founding in Washington, DC.