Justice Alito, joined by Chief Justice Roberts, was not so sure. They were willing to concur with the result, holding that the law was not quite precise enough. In separate opinions, Justice Breyer joined Justice Thomas in dissent, and so the majority for this decision came down to the odd ensemble of Justices Scalia and Kennedy, plus the distaff, liberal side: Ginsburg, Sotomayor, and Kagan. There was a split then among the conservatives on the Court, as Scalia added yet another step to the acceptance over the years, of the law on speech that has been built on the premises of Justice Harlan’s relativism: “One man’s vulgarity is another’s lyric.”

Scalia would insist yet again that it is arbitrary to cast moral judgments on the “content” of speech. The same doctrine that led him to accept, as free expression, the burning of crosses and signs of harassment saying “Semper fi fags” (see my Public Discourse essay on this topic here) now leads him to withdraw any ground of judgment, or moral restraint, on a class of “entertainments” that occasioned no particular strain in the past as they were brought under a regimen of legal restraint. Even when we accept capital punishment, we have long backed away from staging executions as spectator sports. And even in this age of coarsening sensibility, we have continued to ban cock-fighting and comparable blood sports. We’ve thought it not wholesome or salutary to cultivate among our people a sadistic satisfaction, a tendency to take pleasure in the agony or torture of human beings—or even animals. The simple root of the matter was reflected a while back in a report in the New York Times of a writer who had gone to see a film in which a woman was dismembered with a chain saw. Behind him, somewhere in the dark, he heard a man moaning, “yeah, yeah.” The reporter confessed to a certain uneasiness about leaving the theater and encountering the same man on the street. He should have been even more uneasy with the recognition that this fellow could have stood in relation to him as a “fellow voter”—a man with whom he was willing to share power over his life.

When we take matters back in this way, we touch an enduring moral concern of the law that runs well beyond the demand for empirical studies. This is not like the question: how many people reading stories of murder and mayhem are likely to go off on their own to commit violent acts? The concern here touches axioms of our understanding that will be in place even as the empirical studies come and go.

Walter Berns got at this matter years ago in a classic essay on pornography, the arts, and politics:

We turn to the arts—to literature, films, and the theatre, as well as to the graphic arts …—for the pleasure to be derived from them, and pleasure has the capacity to form our tastes and thereby to affect our lives. It helps determine the kind of men we become, and helps share the lives of those with whom and among whom we live.

As Berns observed, a community cannot be indifferent to the ways in which its people find their pleasure. That concern will have to be reflected in the laws, which is especially important for republics or popular governments. When the people furnish their rulers from their own ranks, the character of the people cultivated in the local “culture” becomes even more important. I’ve never known an artist who has thought that the arts were matters happily empty of moral significance. They uniformly seemed to assume that a place with a more vibrant culture of the arts would be a more vibrant and better place. They all readily assumed that the arts can ennoble. But if the arts can ennoble, it follows that they can surely also debase.

No one had the least doubt that New York City, in the days of LaGuardia, was one of the most vibrant and liberal cities on the globe. And yet the City administered a system of licensing or censoring movies, along with other entertainments. That regime of legal restraint went forward without apology, because no one doubted the truth that the arts teach. The question had to be: what were the lessons that were taught? Just how readily those lessons were absorbed and converted into action was a matter of prediction or conjecture. The law could hold back in prudence from restraints more severe as society became less and less sure that the spectacles or performances were likely to be taken as incitements and converted immediately into action.

In his opinion in Brown v. Entertainment Merchants Association, Justice Scalia seemed to take as his anchoring premise a certain immanent doubt that these entertainments would have much effect at all beyond their diversion as entertainment. And indeed, some of these entertainments could possibly drain the impulse to violence. Scalia drew on a long tradition of rather scary lethal happenings in books for children. “Grimm’s Fairy Tales,” he said, “are grim indeed”:

As her just deserts for trying to poison Snow White, the wicked queen is made to dance in red hot slippers ‘till she fell dead on the floor, a sad example of envy and jealousy.’ … Cinderella’s evil stepsisters have their eyes pecked out by doves. … And Hansel and Gretel (children!) kill their captor by baking her in an oven. … High-school reading lists are full of similar fare. Homer’s Odysseus blinds Polyphemus the Cyclops by grinding out his eye with a heated stake.

But Justice Alito was not persuaded that these ancient stories, conveyed in print, bore anything like the vividness, the dynamism, and the unsettling closeness to life as really lived, that is experienced in these advanced video games, with some characters rendered in 3-D:

Victims by the dozens are killed with every imaginable implement, including machine guns, shotguns, clubs, hammers, axes, swords, and chainsaws. Victims are dismembered, decapitated, disemboweled, set on fire, and chopped into little pieces. They cry out in agony and beg for mercy. Blood gushes, splatters, and pools. Severed body parts and gobs of human remains are graphically shown.

And for those willing to look more closely at the catalogue of items offered under these new entertainments, they revealed a level of depravity never before seen in a commerce offered openly to the public:

There are games in which a player can take on the identity and reenact the killings carried out by the perpetrators of the murders at Columbine High School and Virginia Tech. …The objective of one game is to rape a mother and her daughters; in another, the goal is to rape Native American women. There is a game in which players engage in “ethnic cleansing” and can choose to gun down African-Americans, Latinos, or Jews. In still another game, players attempt to fire a rifle shot into the head of President Kennedy as his motorcade passes by the Texas School Book Depository.

To these points of evidence about the entertainments that the Court was addressing in these cases, Scalia complained that Justice Alito “recounts all these disgusting video games in order to disgust us—but disgust is not a valid basis for restricting expression.” But surely this was a reductive way of characterizing the argument offered by a colleague, and it was not the typical mode of response from Scalia, ever scrappy and ever seeking to be civil. Alito was not invoking a matter merely of taste (Lat. dis + gustus, taste); he was touching nothing less than the moral grounds of the law. But of course there is always a danger of that concern being translated in that way with judges who have come to absorb the old premises of positivism, imparted in the law schools: that moral judgments are finally reducible to matters simply of likes and dislikes.

Scalia acknowledged that, since 1791, the First Amendment has been understood to contain restrictions on certain classes of speech never thought to be legitimate, and never thought to be claiming the protections of the Constitution. Scalia marked off three such classes: obscenity, incitement, and “fighting words.” He curiously omitted libel, even though, from the very beginning, the First Amendment was never thought to protect the kind of unjust publication and speech that destroyed reputations and businesses and ruined lives. But that omission was no more curious than Scalia’s willingness to go along with the liberal drift in confining “fighting words” to words spoken in a face-to-face encounter. With that move, he has narrowed dramatically the coverage of that term and left out a domain of assaulting words and gestures that have not depended for their assaulting qualities on face-to-face encounters. The most notable example of such speech is the burning of crosses; a gesture readily recognized as wrong even when the victims have not been home to see the crosses burned. Scalia made it clear that the Court was willing to sustain protections for minors in cases of obscenity or pornography. But where there was no connection to those three classes, he was unwilling, as he said, to create a new category for the restriction of speech because of the content it contained.

And yet, those “limitations” he was willing to respect he described repeatedly as “traditional limitations.” They were part, he said, of a “long (if heretofore unrecognized) tradition of proscription.” He respected them, in other words, because they had been respected in the past. But that was strikingly different from claiming that these were the only defensible and coherent limitations on publication or expression. Scalia has already removed from that range of permissible restrictions the burning of crosses and a large domain of “assaulting speech.” Are we really sure that there is no coherent, compelling case for covering them, as many of them were covered in the past? And if a case could be made for restricting them, within the terms of the Constitution, why would it be so clear that these vile entertainments in so-called video “games” would enjoy immunity from the restrictions applied in the past to things far less odious and depraved? Beyond that, if there is any residue of doubt on this matter, what happened to the traditional conservative concern for federalism?  Justice Harlan once offered an earnest plea to conservatives to accept, for States and local communities, restrictions on pornography and obscenity that would raise graver problems when applied as a uniform standard across the country as a whole. The legislation had spoken, under a traditional formula, of material that is “patently offensive to prevailing standards in the community.” It is remarkable to think that there are still, in California, any standards recognized for judging what is patently offensive in entertainments, even for children. And if there is a faint moral impulse still remaining in California, what is the urgency for stamping it out?

Justice Alito and Chief Justice Roberts held back from joining Scalia in giving such ringing protection of the First Amendment to these entertainments. Alito preferred to strike down the law in California simply because it contained terms such as “deviant” and “morbid,” which could introduce some critical uncertainty in what exactly was being forbidden. But it is hard to imagine the law being more precise in describing what it meant to forbid, and therefore hard to imagine that the producers or vendors of this material could be in any doubt as to what the law was barring. We may run here into a problem we encounter when the law seeks to bar certain bizarre sexual antics: if the legislators hold back in a decorous reticence, the law can be challenged on grounds of vagueness. If they become overly explicit in describing the things they are seeking to restrain, they convert the statute books into a handbook of pornography. At a certain point, the law simply has to rely on a commonsense understanding of what legislators, armed with a decent vocabulary and sense of decorum, were seeking to express. The occupational hazard for the judges is that their proper vigilance over what is enacted into law may spill over into the fallacy that the legislator, or any other person, can possibly spell out in exhaustive detail everything he means to forbid, without the danger of venturing into things he never meant to reach. At a certain point, the judges may have to settle in with the notion that the law is made by people with ordinary wit and that it can be administered, with tolerable faithfulness, by people with the same human gifts. But in the meantime, it would be a mistake of another order to get fixed on problems of this kind when the ground for the law touches axioms of our understanding, which are accessible even to folks not burdened with a legal education.


Hadley Arkes is Edward Ney Professor of American Institutions at Amherst College. The author of many books, including Natural Rights and the Right to Choose, Arkes sits on the editorial board of Public Discourse.

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Copyright 2011 the Witherspoon Institute. All rights reserved.

There may indeed be an argument open about the tactics of Live Action, but the real passion and focus has turned on this matter of lying as an “intrinsic evil.” I don’t think that a couple of my dearest friends (see, for example, Christopher Tollefsen here and here) really wish to put themselves in the position of saying that those householders in Amsterdam were engaged in something “intrinsically immoral” when they spoke untruthfully to the Gestapo about the Jews they were hiding. Nor do I think we wish to say that the householders, who managed in that way to avoid making themselves accomplices in the project of genocide, were running the risk of corrupting their character by “undermining the love of truth.” Let’s stop for a moment to return to the moral ground of the argument.

As John Stuart Mill said, we stop using the language of “like” and “dislike” and start using the language of “right and wrong” to the extent that we think people may be rightly punished for what they are doing. And the converse is that we do not punish people unless we find compelling evidence of their guilt. The refusal to respect the difference between innocence and guilt then is indeed intrinsically wrong, and depending on the gravity of the case, intrinsically evil.

But we remind ourselves that we don’t cast moral judgments solely on the basis of the gross description of the act: “Smith takes the hose from the garage of his neighbor Jones.” Before we’d call it a “theft” we’d ask whether he had permission to take it. He might not have had permission, but he borrowed it for a moment to put out a fire and returned it. He had no permission, but we would be moved to say that his act, given the circumstances, was “justified”—i.e., just, not wrongful. And with the universal logic of a moral term we would be tempted to say that the act would have been justified for “anyone similarly situated.” The point is: Not every taking of property is a theft. Not every killing is a murder. A “murder” is an “unjustified killing.” An innocent person, set upon unjustly, could not be unjustified if lethal force offered the only means of rescuing himself from that unwarranted assault. Plainly, we could not put on the same plane the killing done by a Hitler and the killing done by those who would resist being killed unjustly by a Hitler.

In the same way, not every act of speaking falsely is a “lie.” As many people have recognized, nothing wrong has taken place when children decline to tell their father of the surprise they are planning for his birthday. A “lie” is an unjustified act of speaking falsely, as a murder is an unjustified act of killing. The untruth becomes a lie when it is directed to a wrongful purpose, as in deceiving for the sake of fraud and for the hurting of the victim. Now, if we are in the presence of something we could finally call a “lie” in that sense, it would seem to me to follow that lying is indeed always and everywhere wrong. But that is not what is done by the Dutch householders protecting the Jews they are hiding and speaking falsely to the Gestapo.

In case it comes as news, this understanding was held also by Immanuel Kant, the one most often invoked to proclaim the unconditional wrongness of lying. Kant put it in this way in his Lectures on Ethics:

Not every untruth is a lie….If we were to be at all times punctiliously truthful we might often become victims of the wickedness of others who were ready to abuse our truthfulness.… If my enemy takes me by the throat and asks where I keep my money, I need not tell him the truth, because he will abuse it; and my untruth is not a lie (mendacium) because the thief knows full well that I will not, if I can help it, tell him the truth and that he has no right to demand it of me.

Christopher Tollefsen is convinced that when someone lies, he is absorbing a deep wrong in himself. And I think that is likely to be true. But Tollefsen says that the very departure from truthful speech separates, sunders the person from himself. He goes on to say:

One’s full self is not, in fact, disclosed just by one’s physical being in the world; it remains for one to communicate much of who and what one is to others in acts and words. When that disclosure is truthful, inner and outer are brought into harmony; when dishonest, inner and outer are sundered. Could this division be anything but a harm to a person?

Again, put the matter in its more demandingly moral scheme: Are we really prepared to say that the Dutch householders, hiding the Jews, were in danger of absorbing a moral “sundering” of themselves because they were able to make a distinction between speaking an untruth for the sake of doing harm and speaking an untruth to avoid the kind of killing that was indeed intrinsically evil? And could one honestly profess to believe that these courageous people, risking their own lives in the rescue, had “harmed” themselves in that way?

I must flag one point: this not something to be dismissed as “reductio ad Hitler.” The case of the Nazis at the door was a real case, testing the courage and character of ordinary people in the gravest way. If our friends cannot answer the question posed in that case, that should give them pause and make them think again whether there might be something slightly off in what they are offering us as teaching. And so I’d insist on “calling the question”: do my friends really think that those householders in Amsterdam were engaged in something intrinsically wrong, absorbing corruption, undermining their love of truth?

Tollefsen says that:

Double effect reasoning is appropriate when there is a moral principle forbidding the intentional bringing about of some harm. Some actions, which bring about that kind of harm nevertheless can be justified because the harm is not intended, but merely foreseen. Thus, assuming that the taking of human life is a harm, and that it is always wrong to intend that harm, nevertheless, many moralists defend some actions, which result in death, because the death is not intended.

Is he earnestly saying then that householders speaking to the Gestapo at the door are obliged to refrain from speaking untruthfully, for they do not directly intend the consequences of turning in the Jews they are hiding? That those are merely consequences that flow, regrettably, from their insistence on avoiding the taint of speaking an untruth? Is he really willing to stand by that?

Tollefsen falls into an embarrassing ellipsis in side-stepping a matter pressed even more recently, and raised in the challenge by Christopher Kaczor on the matter of infiltrating terrorist cells: We have undercover agents working with terrorists, and they have managed to disrupt operational plans that were surely aimed at the killing of the innocent. Is Tollefsen really willing to bar that kind of subterfuge against evil and sternly turn away from any responsibility to act, where he could to save innocent lives? His response comes in a haze:

A firm commitment, by any person, or any group, to avoid all lies would inevitably have radical consequences. … Yet these are only consequences of my view, they are not themselves arguments, and anyone who believes, as members of the great Abrahamic religions do, that the Father of Lies is at the root of much evil, must make a constant struggle not to let their commitment to truth become obscured by the demands of the fallen world.

Not only is that finally a non-answer to a deadly serious question, but a response with no residue, no judgment, of moral substance. And it finally forces itself to the test in this way: Any man who holds to Tollefsen’s view and offers himself for the Presidency of the United States should be obliged to reveal to his fellow citizens that he would not use the devices of subterfuge even to protect the lives of innocent people put under his charge. I would submit to my friends—and here truly “call the question”—that anyone holding to that doctrine would forfeit any moral claim to stand in a position of authority in which he bears responsibility to protect the lives of the American people.

Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College. His most recent book is Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law (Cambridge).

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Copyright 2011 the Witherspoon Institute. All rights reserved.

Hadley Arkes writes:

As we bring this exchange to a close, it seems to me that the dispute, at least at this point, might be distilled in this way: O’Brien’s main charge against me is that I wish to trace my judgments back to the point where wrongdoers are those who fall into contradiction. But that is a charge that I draw from him only because I’ve indeed been insisting that, behind all of our practical judgments, we will have principles of judgment, or reasons for what we are doing. Those reasons do find their firmest grounds in the “laws of reason,” anchored in the “law of contradiction.” As Aristotle, Aquinas, Alexander Hamilton, and John Marshall insisted, there are “first principles” upon which, as Hamilton said, “all subsequent reasonings must depend.” If O’Brien joins me in that simple exercise in insisting on reasons to justify acts of moral consequence, I presume that he would want to reach a judgment on whether those reasons are finally sound or unsound, true or false. And what would it mean to say that the acts of the racist are “indefensible” unless we think that our judgment here finally rests on a ground that is unassailably true?

O’Brien seems to reproach me then for insisting on a regimen of giving reasons and testing the coherence of arguments. He offers instead a rich world of feeling often finding expression in literature rather than moral philosophy. But it is unimaginable that O’Brien has no reasons for the judgments he freely pronounces in his commentary. What he has done rather is to leave concealed and unexplained the principles of reason that stand decisively behind his judgments. And so we show that something is bad, he says, because it “frustrates and impedes the happiness of the person who does it.” But he surely knows that some people find their happiness in doing evil things. He would not count as a wrong the move that “frustrates and impedes the happiness” of a Himmler. But then what makes Himmler’s designs wrongful? Are we not obliged finally to explain the reasons we judge those ends as wrongful?

O’Brien tells us that “we could try to get the racist to expand his range of moral experience in order to get him to see things rightly.” And what does he see when he sees “rightly”? On what ground do we explain to the racist that his intense feelings of hatred are—pardon the expression—unjustified, indefensible, unreasonable? Finally, O’Brien takes two points I raised and casts them in this way: “failing to give to people who happen to be black, or who happen to have Down’s syndrome, what they are owed as persons.” Well, what is “owed,” for example, to people with Down’s syndrome? That is not evidently clear even to many people who read widely in literature. As we know, there is a substantial number of Americans who think that what people with Down’s syndrome are owed is an early death to foreclose to them a diminished life of little consequence. And how would we respond to those people? Would we not be compelled to say something, even to ourselves, on why exactly it is wrong to draw the moral inference that people with Down’s syndrome have lives “not worth living”? Or do we steer away from giving reasons, while we appeal instead to feelings?

Some of us were drawn to the study of moral and political philosophy because those subjects raised the highest questions—questions about things right and wrong, just and unjust, and “the way of life that is best for men.” We took the path of philosophy because it led us to the deepest layers of the problem. If O’Brien has come to the judgment that, on matters philosophic, reason is not sovereign; that the truer source of our best judgments lies rather in literature; then why has he chosen to make his vocation in philosophy and not in the study of literature? Here again, what O’Brien leaves unexpressed is probably the most decisive thing in explaining the path he has chosen. He has taken the path of philosophy, and anyone who knows him knows that to be his true vocation. There is where he will do the distinguished work to come, and become, as his friends have already known, an adornment to the academy.

Matthew O’Brien writes:

How far can moral argument get you? Aristotle, who has a claim on being a founder of moral philosophy, recognized its limits. In the midst of his logical work called the Topics, he paused at one point to remark, “people who are puzzled to know whether one ought to honor the gods and love one’s parents or not need punishment, while those who are puzzled to know whether snow is white or not need perception.” Aristotle did not suppose punishment and perception to be alternatives to rational argument, but necessary prerequisites for it. You can’t argue someone into perceiving that snow is white, any more than you can argue someone into perceiving that he ought to love his parents if he doesn’t already see, inchoately at least, that he should.

Punishment sounds illiberal to modern ears, but Aristotle just as well could have said “training” or “habituation” and his point would have been the same. In the course of this exchange with Hadley Arkes, I have been arguing for a view of morality along such Aristotelian lines: one that is grounded in reasons without falling into rationalism, that acknowledges the limits to discursive argument and the priority of perception rather than deduction. This view is consonant, I believe, with the main tradition in natural law thinking exemplified by Aquinas, but not with the rationalism that Arkes admires in Kant. In urging that moral sensibility plays an ineliminable and central role in moral theory, I have not implied that “feeling” should replace “reason,” or “literature” replace “philosophy,” or taken up any other half of a false dichotomy.

On the contrary, I have urged that to preserve reason’s place in moral thinking we need acknowledge the subordination of argument to habituated experience. Moral disagreement is a pervasive feature of modern western societies. This would not be the case if Arkes’ algorithmic moral theory were correct, and the wrong of racism, for example, could be demonstrated a priori as a condition for the freedom of the will. But the wrongfulness of racism or other violations of justice cannot be demonstrated in this way, and to encourage the expectation that they should be aggravates the consequences of moral disagreement. So often the moral skeptic is really just a disappointed rationalist.

Controverted debate over fundamental moral issues is not apt to produce agreement, let alone yield truth. As John Henry Newman wrote,

Truth is vast and far-stretching, viewed as a system; and, viewed in its separate doctrines, it depends on the combination of a number of various, delicate, and scattered evidences; hence it can scarcely be exhibited in a given number of sentences. If this be attempted, its advocate, unable to exhibit more than a fragment of the whole, must round off its rugged extremities, and unite its straggling lines, by much the same process by which an historical narrative is converted into a tale. This, indeed, is the very art of composition, which, accordingly, is only with extreme trouble preserved clear of exaggeration and artifice; and who does not see that all this is favourable to the cause of error,—to that party which has not faith enough to be patient of doubt, and has just talent enough to consider perspicuity the chief excellence of a writer?

Perspicuity as a writer Arkes unmistakably has, and indeed he and his work have much more than that. But his moral insight and gift for crafting the telling anecdote, comparison or example, for teasing out the narrative significance of our political history—these virtues deserve better company than the unfulfillable aspirations of moral rationalism.

Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College. His most recent book is Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law (Cambridge). Matthew O’Brien is a doctoral candidate in philosophy at the University of Texas at Austin and a lecturer at Rutgers University.

Copyright 2011 the Witherspoon Institute. All rights reserved.

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As I say, one doesn’t have to be a Kantian in order to make that argument. And invoking Kant as a bogey-man does nothing to show that there is something wrong in that argument. Consider Lincoln’s approach: “As I would not be a slave,” he said, “so I would not be a master.” Since he rejected the relation in principle, his rejection had nothing to do with the question of whether he stood on the advantaged or disadvantaged side of the relation. Now could someone say he is a Kantian? He talks about something wrong in principle, whose wrongness will not be effaced even by good consequences. But Lincoln knew nothing of Kant, and he supplied what Kant did not: a sense of classic prudence. He could recognize slavery as something wrong in principle, and yet he could make an accommodation with that evil for the sake of putting it “in the course of ultimate extinction.”

My friend Robert George will often invoke Kant on the matter of treating people as ends, rather than means. And yet he is not accused of bearing with him all the Kantian baggage because he found something in Kant illuminating. I would simply claim, in a comparable way, that I’m drawing upon parts of Kant’s teaching that explain better than anything else the properties of our moral judgments. I put the question then to Matt of whether he could draw on other writers dealing in natural law, to show us how they could offer a more compelling argument on those two issues I suggested, springing from two versions of “determinism”: racial discrimination (and I’d tuck in here its corollary, racial preferences), and withholding medical care on the assumption that people afflicted with deafness or Down’s syndrome had “lives not worth living.” As a way of sharpening the question, I’d just recall a couple of the Kantian arguments woven into my own argument, and which I think would be hard to reject—or do without:

• Kant warns us that we cannot make our way to our moral principles by simply generalizing on the checkered record of our species. If we did that, we would fall into the mistake of some recent writers who have suggested that infanticide and genocide must be in accord with natural law because they seem to be an intractable part of the human record. Those policies must be rooted, they infer, in something deeply planted in human nature. But natural law has ever made a distinction between what is higher and lower in human nature; and natural law has ever condemned the killing of the innocent.

• In detaching ourselves from mere “generalizations” we have the advantage also of delivering ourselves from the world of moral judgments that are merely “probabilistic.” Offices of Admission may assume that black people are far more likely than whites to have suffered discrimination and poverty. But that could not supply a justification for tilting in favor of any black candidate over that child from a Polish Catholic farmer in Hadley, Massachusetts, the first one in his family to go to college. And on the other side, it would be quite as indefensible to exclude from the neighborhood black families with teenage males just because people in that cohort generate a disproportionate share of violent crime.

• Kant warned us that a unanimity of feeling cannot offer a surrogate for a moral judgment. Even if we were unanimous in our passion for coca-cola, we could not make the coca-cola compulsory. “Feeling” may be evanescent; it is contingent on things changing day by day. It is strikingly different, say, from that first principle of moral judgment: that we may not hold people blameworthy or responsible for acts they were powerless to affect. That principle, as Kant might say, is implicit in the very logic of “moral judgment,” and yes, it would hold true then for every “rational creature as such.”

And why is that important? When we make laws, we sweep away the private preferences of people, and impose a public rule made binding on everyone. Hence the connection between the logic of morals and the logic of law: when we legislate for other people, we need to say something more than, “most of us here think this is desirable,” or “most of us have strong ‘feelings’ that this is the just thing to do.” We would need rather to establish that we are acting on the basis of propositions that would hold their validity for everyone, even if not everyone recognizes why they happen to be true. And that is what we do when we seek to trace our judgments back to anchoring “first principles” as Thomas Reid understood them: propositions that were true of necessity. John Marshall and Alexander Hamilton referred in this way to the “axioms” of our judgment, meaning essentially the same thing. And yet O’Brien writes as though it were odd or eccentric—or on the face of things implausible—to say that our judgments find their firmest ground when they are anchored in propositions of that kind, which cannot be denied without falling into contradiction.

That is what I indeed claimed to offer as the ultimate grounds of our judgments on that matter of racial discrimination (and racial preferences), and on that other issue, of withholding medical care from people who are deaf or afflicted with Down’s syndrome. (Here the recognition was that nothing in these attributes could “determine” in any way the moral character of persons and whether their lives were “worth living.”) Now what does O’Brien offer as the ground of his own judgment on these matters? He tells us:

We demonstrate [an argument] by carefully reflecting upon our personal and social history, the consequences of racism and neglect, the nature of human animality, and the unspoken ways in which every one of us is dependent upon other people for our happiness.

And therefore what is the judgment, say, on racial discrimination and racial preferences? The apostles of affirmative action are sure to pounce on the concern for “the consequences of racism and neglect” as they tell us why we have to indulge now a discrimination in favor of one racial group against another.

But that brings us to the deepest mystery here. Let’s say that I invoke the principle that even ordinary folks seem to understand: that it is wrong to make moral judgments about people based on their race and to assign benefits and disabilities based solely on race. I claim that this principle would hold, as Kant says, for any “rational creature as such.” Now, would that principle hold for people who are fathers, mothers, brothers, aunts, outfielders, divorcées? Why in the world would O’Brien say that anyone who speaks in this way about the principles that command the respect of “rational creatures as such” must have to pluck these people out of their lives and treat them as though they weren’t husbands and wives, fathers and mothers? O’ Brien affects to be surprised that I refer to “life as lived.” And yet, what has ever been the purpose of this exercise but to bring the principles of judgment to bear on cases of real people with real hurts?

In the course of his commentary, O’Brien touches on that question so central to political life, the question of the “political regime.” And he tells us then that “there’s at best a negligible sense in which I chose to be an American.” Yes, he was born in America, but does that mean that he sees no rational ground—and therefore no principled ground—for adhering to the American regime? As Fr. Neuhaus used to say, a good citizen is one who can offer a moral defense of the regime that merits his commitment. In the recoil from Kant, has O’Brien backed away from a notion of “rational principles” to ground our judgments, even about this central matter of our political life? Is he leaving everything to the curious mix of “personal and social history” and “human animality,” and with no real principle, finally, to govern our judgments?

And the judgments remain to be made. It is still worth trying to see how he would make them. What versions of natural law might be drawn upon in offering a better set of arguments than the ones I’ve unfolded on those two matters I suggested: (a) racial discrimination and racial preferences, and (b) the withdrawal of medical care from those afflicted with disabilities such as deafness or Down’s syndrome. But this is not a burden that falls distinctly to O’Brien. For the good deed of doing such a thoughtful review of my book, I drew him into a further conversation, and ended up making more work for him. But the question is still there, and it is of real interest in our circle.

In the meantime, I’d offer this plea: The fact that some of us find Kant quite persuasive on certain points does not mean that we carry with us all of the baggage of Kant. And simply to invoke the specter of Kant is not enough to show that the judgments people are making, when drawing on Kant’s teaching, are wrong. At some point one has to face the judgments themselves and explain why they are wrong. And if they are wrong, tell us a better set of reasons to produce a judgment far more just and defensible.


Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College. His most recent book is Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law (Cambridge).

Copyright 2010 the Witherspoon Institute. All rights reserved.

This was also the kind of review from which people on all sides could learn as one sees the fuller argument unfold. And in that spirit—with that purpose in mind—I’d like to raise some questions in turn for Matt O’Brien, if I can turn back on him some of the serious questions he raised about my argument. The most serious criticism he offered dealt with what he called, fairly enough, my “eclectic” blending or what he described as my “fusionist account” of the natural law, one which draws upon Aristotle, Aquinas, Kant and, yes, Lincoln. He is quite dubious about what he sees as a Kantian strain seeking to find the ground of our moral judgments in “the laws of reason.” The anchoring proposition in the laws of reason is of course the law of contradiction, and the test then of any proposition claiming the standing of a necessary truth, a first principle, is that it cannot be contradicted.

O’Brien regards that as altogether too confining, though it would seem to come along with the whole package if we understand the logic that has ever attached to “axioms” and “first principles.” John Finnis, a close student of Aquinas, remarked on the good of knowledge, as a good known per se nota, a truth to be grasped as true of necessity: that it is “presupposed in all demonstrations … and has as much title to be called ‘objective’ as any other proposition whose contradictory is inevitably falsified by the act of asserting it.” I don’t think Finnis would strike O’Brien as dangerously “Kantian” because he too seeks the grounds of our moral judgment in axioms that cannot be rejected without falling into incoherence.

But O’Brien is dubious about notions of seeking “maxims” fit to be installed as universal rules. He points out that in the play of normal life people have many reasons for doing what they do. And so, as he says, “the imperative to universalize ‘one’s maxim’ is forceless without substantive criteria to determine which maxims”:

To have substance, morality needs to go beyond mere rational consistency and find its grounds in the form of “rational animality,” as Aristotle and Aquinas saw … [And earlier:] The Kantian aspiration to squeeze morality out of rational consistency is unworkable because the categorical imperative to “universalize” the maxim of one’s action is an empty formalism, as critics from Hegel to Anscombe have shown.

Of course the construction is formal; but when we apply the principles to practical cases we can draw propositions that are concrete, precise, quite freighted with substance, and not the least hazy. I should point out that nothing in this apparatus of reasoning could tell us what counts as hurt or harm among human beings. For that we need to be aware of life as lived. But once we are aware of a harm that calls out for justification, the principles of justification kick in with their real force. As Daniel Robinson has remarked in this vein, “Merely empirical content has no permanent address. It gains residence in the epistemic court by way of general concepts—code for ‘form.’” On the matter of “maxims”: Yes, people have many reasons for what they do, but when they are set upon, they will demand from their tormentor the justification for what was done to them, and I don’t think we will find people settling in so affably with the explanation, “Well I had many motives, high and low, serious and fleeting.” We would want to know the reason, or the maxim, that the actor regarded as decisive, when he acted upon us.

I do confess that I have drawn from Aristotle what I think has been most enduringly true in his writing, and so I have not followed Aristotle on biology or his conclusions about slavery. In the same way I’ve drawn what has struck me as resoundingly right in Kant, persuaded that I could do that without annexing for myself the parts of Kant that don’t strike me as especially illuminating or apt. The test will come in the application. And that is the point at which I would do the pivot and put the question back to Matt O’Brien. He and Robert George have been kind enough to point out, as a defining mark in my own work, the tendency to be rich in the furnishing of examples: the examples that illustrate, and the examples that test the argument. In a contrast, Matt thinks that, with my invocation at times of Kant, I run the risk of falling into abstraction and empty formalism. And yet the irony is that his own commentary, with its references to Kant, had itself a certain airy quality of abstractness. I would propose, then, this gentle exercise to test the matter at issue here.

Let us take up as an active possibility what O’Brien merely suggests: that accomplished philosophers such as MacIntyre and Anscombe, freed from my perspective, may offer in any practical case a sounder version of natural law, with a sounder judgment on the things that are just or unjust, right or wrong. Let’s try that. Let us take two of the critical problems I dealt with in the book, and I’d invite Matt to show how any of these writers—or any theory he would propose—would offer a sounder judgment, with a more satisfying set of reasons than the judgments I had brought forth, with the reasons that produced them.

The first case could be that argument in principle against racial discrimination as I have cast it in my writings going back to First Things (1986) and The Philosopher in the City (1981). I have argued that the wrong here is to be found in a notion of racial “determinism”—the claim that we are controlled or “determined” in our conduct by “race.” It assumes that, if we know the race of any person, we can draw then some telling inferences about their goodness or badness as persons—whether their presence in the neighborhood or the firm will improve the place or degrade it, whether they deserve rewards or disabilities. But every one of us could be said to be a member of a race. And if race exerts a deterministic control over our acts, then none of us would be responsible for his own acts. None of us could plausibly be punished then for the wrongs we do—or properly receive credit for our accomplishments. Indeed, as I’ve said, if these acts of racial discrimination are not wrong, nothing literally could be right or wrong, for the language and logic of moral judgment would dissolve. Moral words would lose their meaning.

The second case involved those matters recognized instantly by ordinary folks as facts wholly wanting in moral significance, facts that can supply no ground of moral judgment. We do not draw moral inferences about the goodness or badness of people, their worthiness or want of merit, on the basis of things like their height and weight, their color—or their affliction with disabilities such as Down’s syndrome or deafness. As I sought to show in the chapter on natural law, this argument, too, can find its ground as well in “the laws of reason,” for we simply reject the notion that any of these attributes—height, weight, disability—can exert a deterministic force over the moral character of any person. Wherever we are in the world, I submit that it would be wrong to let the withdrawal of medical care hinge on the moral conclusion that a life afflicted with deafness or Down’s syndrome is a “life not worth living.”

Any move to assert “determinism” in either case falls into the same incoherence: Either one would deny the essential freedom of the moral actor to choose his own path of action. That claim encounters its denial at every turn because it keeps falling into self-contradiction—the contradiction touched on by Robinson when he raised the question of whether we are “free to reject the determinist thesis.” And we remind ourselves that, if we have in hand propositions that cannot be denied without falling into contradiction, they will be true, perforce, in all places. And so, as Kant says, they will hold true for “all rational creatures” wherever they are found. Hence the claim that it would be wrong in all places to withdraw medical treatment from the deaf, or from those afflicted with Down’s syndrome, on the claim that people afflicted with these conditions have lives “not worth living.”

And that brings us to the threshold of what might be an interesting experiment. We could take from either one of these arguments—the argument in principle against racial discrimination, or the argument in principle about those facts “wholly wanting in moral significance”—the wrongness of withholding care from a patient on the basis of his deafness or Down’s syndrome. Here is the problem: Could O’Brien offer a better, or more compelling account of the wrong in these cases if he drew on any of the writers he offers as a corrective to the brand of natural law I’ve set forth in the book? Might MacIntyre or Anscombe, or any of these other writers we both esteem, offer a more satisfying account of natural law—and a sounder judgment in rendering a just decision in these cases? Let’s make sure that this account, or judgment, is not dependent on claims that are merely probabilistic and which may not hold true from one case or place to another. And let’s make sure that it doesn’t depend merely on generalizations about our fellow humans, which may not hold true all the time. With those concerns in mind, I wonder if we can pursue the conversation launched nicely by Matt O’Brien’s review.


Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College. His most recent book is Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law (Cambridge).

Copyright 2010 the Witherspoon Institute. All rights reserved.

Now we are finding the same translation provided again even by conservative writers and jurists. The case at hand involves the antics of the Rev. Fred Phelps and a contingent from the Westboro Baptist Church in Topeka, Kansas. In 2006 they were alerted to the funeral of young Matthew Snyder, 20, a Marine lance corporal who had died in Iraq. Phelps and his crew, ever ready to broadcast their message, made it a point to show up at St. John’s Catholic Church in Westminster, Maryland, the site of the funeral. They came with signs saying “Semper fi fags,” “Thank God for dead soldiers,” and decrying the “pedophile machine” of the “Roman Catholic monstrosity.” The editors of the Wall Street Journal pronounced Phelps and his band “scoundrels,” their message “despicable.” And yet the translation was made again: The editors seem inclined to think Phelps nevertheless had a “right” to engage in despicable performative acts because there are no grounds on which the law can really discriminate between the “despicable” and the “unlikable.”

But the law was not always thought to be so wanting in the standards of judgment, and the judges expounding the law were not compelled to absorb, ever more deeply with each case, the premises of moral relativism. Until the 1970s the cases on speech, and the harms inflicted through speech, were governed by the classic case of Chaplinsky v. New Hampshire (1942). Justice Frank Murphy observed in that case that certain well-defined and narrowly focused classes of speech have never been given protection under the Constitution. As he wrote in a famous passage:

These [classes of speech] include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. [Italics added]

But in the early 1970s this understanding was truncated and largely displaced in favor of a view the judges regarded as far more sophisticated and in tune with the times. The signature line came with Mr. Justice Harlan in Cohen v. California. The case involved a young man, in the courthouse of Los Angeles, wearing a jacket with the inscription, “F*** the Draft.” Harlan gave us the line that would echo through the coming years: “One man’s vulgarity is another’s lyric.” Heated words, the words of political argument, were emotive; they were too subjective to bear any fixed meaning. And so there was “no readily ascertainable general principle” by which to distinguish the words on Cohen’s jacket from other words. Harlan’s grand innovation in this case was to discover the teaching of “logical positivism,” quite heady in his days as an undergraduate—but long abandoned now in the schools of philosophy.

But with Harlan’s opinion in Cohen, the law on speech would turn in a new direction, governed by Harlan’s relativism. The judges, even conservative jurists, would talk themselves into the notion that the law could not make judgments on the content of speech. But in that way they glided past the deep incoherence of Harlan’s new doctrine and forgot the truer understanding of language that was contained in the old Chaplinsky case. Harlan had insisted on protecting Cohen’s jacket as a species of political speech. And yet, if the meaning of words was “subjective,” how did he profess to know that the speech was “political”? Perhaps “F*** the Draft” meant “make love to the wind.” But Harlan understood that Cohen was condemning the Draft. Still, how would he have known that without knowing that certain terms and symbols were established in the language as terms of condemnation, disapproval, insult? Back to Chaplinsky.

Chaplinsky rested on the understanding that we could not have a private language. I cannot go into town and order a corned beef sandwich and then later explain that I mean one of those things with ice cream and chocolate sauce. With “ordinary language” we are compelled to be guided by the way in which words are commonly understood. We are constituted as moral beings, given to praising and blaming, applauding and deriding, commending and condemning. We can refer to things we merely “dislike” but we move to another level when we complain about mistreatment or when we condemn genocide in Darfur. The moral functions of commending and condemning are built into our nature, and the words that carry those functions must be understandable at any given time. Words of course may alter over time in the way they are shaded and understood. But at any given moment, ordinary people must be able to know the words that are established in the language as the moral terms of commending and condemning, praising and assaulting. Truck drivers and construction workers can show a remarkably keen sensitivity to words and gestures that are insulting or even subtly patronizing.

Chaplinsky was simply based on that common sense about language, and with that sense of things we were able to give juries of ordinary working men and women these instructions: Convict only when people used gestures and words clearly understood as terms of assault. In case of doubt—if the words are less clear or at the borderline of derision, just hold back from convicting. I’ve found in my own experience that people never suffer doubt in applying that rule to a list containing words of this kind: Kike, bastard, nigger, faggot, meter maid, urologist, hero. People in Washington may stop for a while at “meter maid,” but they have no trouble in recognizing the terms clearly established as terms of insult.

The Chaplinsky case also had the advantage of building on a tradition of understanding in the law that “assaults” did not strictly require the laying on of hands. One could shoot and deliberately miss. One could hold an unloaded gun near the head of a victim and click the trigger. There was not that much discrimination between an act of that kind and threatening calls in the night, or letters of extortion—or a cross burned outside the home of a black family. People who knew the conventions in their own language would have no trouble telling the difference, say, between a burning cross and a burning shoe box. With this understanding, swastikas and burning crosses and blazing epithets could be understood as “assaults” as fully as rocks thrown at victims.

With Justice Harlan’s turn in the Cohen case, the judges would essentially remove from the notion of “fighting words” those words “which by their very utterance inflict injury.” The wrong would be narrowed to those words that were spoken in a face-to-face encounter, in a distinctly personal attack, and likely to trigger a violent reaction. That formula has proved inapt at every level. Not the least of which is that the cases have been brought in actions for personal damages. And so in the case of Snyder v. Phelps, Phelps and his band were compelled by the local authorities to stand a good distance from the church, so that their presence would not impinge on the funeral. Nevertheless, this outpouring of venom drew the local news. Mr. Snyder, the father of the young marine, would later see the footage in images that would be hard to erase from his mind. He claimed to suffer, as a result, a deepening depression that would not quit and a worsening of his diabetes.

In the past, these spectacles of verbal assaults would be handled with an arrest, along with a fine of about $200—just enough for the law to make its point and put a stop to the spectacle at hand. But with the Court now virtually foreclosing that path, Mr. Snyder sued under the laws of Maryland for the infliction of emotional distress. He was awarded both personal and punitive damages, which the district court scaled back to an award of $2.1 million. And that became the subject of the case that was argued on appeal to the Supreme Court just this past week: Could Phelps invoke the First Amendment now to invalidate an action in personal damages for emotional distress?

The concern of the Wall Street Journal and other publications is that these kinds of action for personal damages could lead to knockout damage awards that could put newspapers and journals out of business. But the editors seemed to have forgotten that this state of affairs is one that came about when the Court turned to relativism and confined the meaning of “assaulting words” to words directed to personal targets, threatening injuries distinctly personal.

As the judges sought to untangle the problem during the oral argument, Justice Scalia and his colleagues began to back into the reasoning contained in Chaplinsky, the reasoning that many had forgotten. Scalia reminded the counsel for Phelps that the doctrine of fighting words did not actually require the evidence of violence breaking out. After all, the victim could be outnumbered—or be a Quaker, as he put it, a pacifist. When a menacing crowd gathered in front of the house of a black family or burned a cross, it was implausible that the family in the house would try striking out at the crowd. It was also the case that a burning cross would never contain the particular names of the members of the family who formed the target. The burning cross was a symbol of hostility to blacks, and its bearing on the family at hand would be unmistakable. If fighting words were confined to words directed at persons in a face-to-face encounter, the burning crosses could never be decoded as an assault.

But then even further: the wrong of the assault did not have to entail any material injury, for the same reason that assaults did not require bodily touching. In one notable case in Long Island, a cross was burned outside the home of a black family who had been away. By the time they had returned, the cross and the debris had been cleared from the scene. The family had never witnessed the spectacle and experienced any fright. Yet, the people in the community were deeply embarrassed, for they had the sense that an act of bigotry and assault had taken place in their midst. And were they not emphatically right?

Justice Murphy had remarked quite aptly in the Chaplinsky case that these gestures of assault are “no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” In one notable case, Mr. Rosenfeld, speaking at a PTA meeting in New Jersey had one adjective: “motherf****ng.” It was thought that Rosenfeld could be asked, properly, to avoid such language out of a sense of propriety in a public place; and yet nothing in that restriction would impair in any degree his freedom to mount the most vigorous, substantive critique of the school board and its policies.

But that part of Chaplinsky has been forgotten, along with the recognition that the words themselves may constitute an assault. Mr. Snyder was appealing from the decision of the appellate court below that had overturned a judgment in his favor and protected Phelps for engaging in “political speech.” The court of appeals in the Fourth Circuit argued that “speech concerning homosexuality [is] a matter of public concern” and a legitimate subject of public argument. So it is, and therefore it should not be banned in colleges and churches and public places. But as the law used to teach us, public argument may continue to flourish, even while we ban the gross gestures and antics that constitute an “assault.” In fact, serious argument may flourish even more because the law can in fact recognize the difference between “argument” and the words and symbols that function unmistakably as terms of assault.

During the oral argument in the Snyder case the judges were pondering for a while that there might be a distinction between signs that were critical of the war in Iraq and signs that directed epithets at Matthew Snyder and his family. But Justice Alito offered the hypothetical of a grandmother visiting the grave of a grandson who died during the war in Iraq. If she were accosted by protestors condemning the war, could that assault on her be protected by the First Amendment because the assailants mentioned only the political issue of the war? Curiously, the division between liberals and conservatives on the Court did not seem so vividly present as the argument unfolded in this case. Justice Kennedy pointed out that we all have memberships in various groups, religious, ethnic, political, and “any one of those things …could turn into a public issue and follow a particular person around, making that person the target of … comments.” And so the distinction between political speech and speech targeted to a person would not supply a ground for excusing “outrageous conduct” and protecting it with the First Amendment.

The Court seemed to be veering toward this kind of judgment: that in the absence of a more personal attack, denunciations of the war in Iraq or the homosexual life would be regarded rather clearly as political speech, well within the protections of the First Amendment. But the mere publication of an obituary was not enough to convert Matthew Snyder into a “public figure.” And even if the local laws marked off restrictions for “time and place,” Phelps and his followers did not have a license to turn a family’s private grief into a circus of venomous attacks. The Court may be acting then within the grooves of the law that supplanted the Chaplinsky case, the law that narrows the wrong to assaulting words directed to particular persons. But in getting there, the Court has had to rediscover many parts of Chaplinsky that had fled from its collective memory over the years. The main thing that remains to be rediscovered are those words “which by their very utterance inflict injury.” Scalia, who had come so far, still found himself saying that the terms for identifying assaulting speech are “subjective.” But it may be only a matter of time until this accomplished student of languages recalls again things he had known long ago: that the words and symbols are not randomly chosen; that we cannot invent a private language; and that the standards that stamp swastikas and burning crosses as symbols of assault are anything but subjective.


Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College. His most recent book is Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law (Cambridge).

Copyright 2010 the Witherspoon Institute. All rights reserved.

It is eminently fitting—it is not the mark of a crimped nature—that parents take a heightened responsibility for the children who are theirs. We know enough by now to know that this, the most natural of sentiments, has not always held true. Not all parents have been protective of their children; some have been willing to “get rid” of their children, and some have had a merchandising attitude toward their offspring. We think of Woody Allen’s line, that “this is a watch . . . that my father, on his death bed . . . sold me.” But this is a day for people who have borne their responsibilities, parents and children, in reaching this day, and reaching it in the presence of faculty pursuing a rather distinct mission . . .

I don’t want to sound like that cleric described by George Eliot in Daniel Deronda, a man who seems to fancy that his personal correspondence was part of the history of Protestantism. But I wonder if I could lead you into these remarks by telling a bit of my own experience teaching at a small college in New England . . .

Early in my career at Amherst I was teaching a course on political parties. I told another junior professor that I was determined that no student of mine would flub a question on political parties, as I had during an oral for honors as an undergraduate. My colleague confided to me that this was the wrong measure: we cannot make the course an annex to the graduate schools. Most of the students in the course will not even be majors in Political Science, and this could be the only course they will have in the subject. The question is: how does this course stand on its own as a contribution to a liberal arts education—which is another way of saying: where does this course on parties, of all things, fit into the history of philosophy?

My late colleague, Joe Epstein, once put it to me in this way: you are a doctor of philosophy resident in the department of political science; your task is to engage the students where they are, on the issues of the day that engage them—but then to lead them back to the enduring questions of philosophy. My friend Dan Robinson used to say that our mission was to shape students who could not be bought and not be fooled. And we happened to think, we young professors, that we bring people a long way to the point of not being bought when we bring them to the point where they are not easily fooled—where they are not taken in by slogans masquerading as principles. The question, we used to say, was whether our students had a principled ground for their motivations, and reasons for their actions.

In that vein, we used to cite that fine passage from Aristotle in the Ethics when he said that the study of politics may not hold much interest for those people, young or old, for whom life consists of a series of disconnected emotional episodes. But for those people who are genuinely concerned that there be some connection in principle between the judgments they made last week and the judgments they make today, this study of politics could be quite instructive. Or as Immanuel Kant put it, when we respect a person, we are registering our reverence for that law of which he happens to be an example. And so the question for us, forming our mission, is this: can we bring our students to the point where they can give an account of that law, or those principles, of which they purport to be examples?

We like to think that we are engaged here in what used to be called “higher education,” and it was especially suitable then to raise the question of what was indeed higher and lower in the things we could know. We come to know how to drive a car, but then we could drive an ambulance or we could drive a getaway car for the Mafia. And so we may ask, which is higher: the knowledge of how to drive, or the knowledge of those ends or purposes of driving that are justified or unjustified, right or wrong? The answer was contained in what we might call the logic of morals itself. As Thomas Aquinas taught us, the good or the right is that which everyone is obliged to do; the wrong is that which everyone is obliged to refrain from doing. The good is higher than the bad, more desirable than the bad. And so the knowledge of good, the knowledge of right and wrong is higher than the knowledge of technical means, because the knowledge of right and wrong is better than an ignorance of right and wrong, or a life lived with indifference to matters of right and wrong. Higher than the knowledge of driving the car is the knowledge—the moral knowledge—of the ends of driving that are good or bad, right or wrong, justified or unjustified. This leaves us with an uncomfortable question: who does the highest work in this society? Who has the highest art or science, the science that directs everything else?

Aristotle’s answer is one that predictably jars people or leaves them scratching their heads: the highest science, he held, is political science. Now I’ve seen political scientists gathered in large numbers, and when they are assembled in mass they don’t exactly strike you as the people you would trust to rule the world—or even accurately describe it. But political science is, at its best, the science of reflecting on the principles of justice, the nature of the just political order and the things we are justified in imposing on people with the force of law. Political science, as Aristotle thought, is the architectonic science, the science that knows the first-order principles that give proportion and scale to everything else.

Science Without Political Science?

Well, what about people working on new drugs that deliver us from high blood pressure, prostate cancer, diabetes and other ills? Wouldn’t that be more important than something like political science? As important as such life-saving research is, science itself still works under the governance of moral principles that are even higher. But we used to understand, also, that science itself worked under the governance of moral principles that were even higher. For there were moral limits on the way science acquired what it wanted to know. Some of the research carried out by the Germans during the Second World War had considerable utility for people in other countries. If we wanted to know just how icy were the temperatures that pilots could absorb when they were downed in the Atlantic, what better way to test the proposition than by dunking some prisoners, in the death camps, who were, as the saying goes, going to die anyway.

And yet we seemed to have been clear in this country—or clear until recently—that we should not do lethal experiments when there were alternatives that were non-lethal, and we shouldn’t do experiments with lethal risks on patients without their consent. Those moral inhibitions could indeed slow the pace and reach of research, but we seemed to understand that there were, as I say, serious moral limits even on what scientists deeply craved to know. And now, in our own day, we are faced with a choice of whether we will do research on stem cells extracted from embryos, killing these nascent lives, or whether we will use adult stem cells, or the newly contrived induced pluripotent stem cells (iPSCs), cells that are formed by reprogramming adult cells, which can therefore be made from skin cells. They can be contrived without killing live human beings. The new methods involved here would allow us to produce the equivalent of embryonic stems cells for research without creating and destroying embryos.

The distinction is critical because each one of us began as an embryo—and it was all there in our genetic makeup—our likely height, our allergies, perhaps even our SAT scores. That embryo, and that alone, was you or I. When we make a decision either to allow the destruction of embryos in research or not, we make a decision at the top of the state about the kind of work we think legitimate and salutary, the kind of work we are willing to encourage by removing the moral and legal inhibitions, and licensing, encouraging, and promoting that work. And so a whole new industry arises, with many people working in labs.

My point though is this: a decision is made by legislators, by people making laws—they are engaged in the highest practice of a political science, and the decision they make will either foreclose many people from making their livings in a branch of research involving the use of embryonic stem cells, or they will remove the inhibitions and cause that kind of work to burgeon. What is permitted then, in this new line of “work,” is the killing of human beings in their earliest stages. The people in official authority make a decision, and that will have the most palpable result in the way that thousands of people will be permitted or even encouraged to make their livings. Aristotle curiously had it right: political science is the architectonic science. It gives proportion and scale to everything else; it even decides which occupations we think fit for a decent people.

I once posed the question in this vein to students preparing themselves for medical school: did they think that the dignity of medicine in the United States was on the same plane as the dignity of medicine in the Soviet Union? I didn’t mean, how much money did doctors make or what status they enjoyed. I meant: were the ends of the medical art the same in both places? Was the status of medicine the same, say, in a concentration camp, where people were restored to some minimal health for the sake of returning to slave labor? Wasn’t medicine itself diminished in that setting? Wouldn’t the ends of medicine be higher in a country, or in a political regime, in which people were restored to health with the possibility then of living at the top of their potential—by living, that is, as citizens in a country in which they were free to join with their fellow citizens in facing the highest questions about the way they will live and the kinds of laws they would impose on one another?

If that is right, the point was simply that there are certain political regimes that will enhance or degrade the practice of medicine. The upshot for the student entering a liberal arts college then is this: if you’re a student preparing to become a doctor, you should be taking organic chemistry and biology, and it wouldn’t hurt to have physics and a brush with the neural sciences. But it also will matter profoundly to the integrity of your profession as to the regime that will supply the cast of your life in practicing your arts as a doctor. And so it may be useful to you to learn something, in college, about the principles that define the kinds of political orders that are just or unjust, and more or less fitting for human beings.

Competing Allegiances

This is the age of diversity in enrollments, and colleges have been recruiting students from more and more exotic places overseas. But do we care then about the kinds of moral commitments they bring to the college if they have absorbed the principles of those regimes from which they come? As Aristotle taught us, the good citizen is the same as a good man only in a good regime. If we brought to the campus in the 1930’s a German student who was loyal to the Nazi regime, a student who had absorbed within his character the principles of that regime, how might it have mattered? We have at Amherst students who have come from the totalitarian regime of Vietnam and that curious, free market despotism in China. The question has to arise then of what are they bringing—and what is their intention in going back home? Do they hope to become a force to change their regimes, bringing them closer to an American model, when they return home? Or is it their purpose to use the skills they learn in America in order to put them in the service of a regime that may be hostile to our own?

We can hardly do better than to recall the notable example of that famous member of the Harvard Class of 1921, Isoroku Yamamoto, later Admiral Yamamoto, an early advocate of naval aviation, the man who commanded the Japanese fleet of ships and planes for the attack on Pearl Harbor. People may not recall that Yamamoto had a real affection for the United States; he was opposed to the war with the United States. He was opposed to the invasion of Manchuria; he was opposed to the pact with Hitler and Mussolini; in fact he was thought so politically unreliable that he was watched by military intelligence. Nevertheless he thought the highest honor was to die in the service of the Emperor and the Empire. He liked America, but he loved even more the Japanese regime.

It was found in a recent survey, by the Council of Graduate Schools, that in the fall of 2007, 241,095 non-U.S. citizens were enrolled in American graduate programs. About 55% were in engineering and the biological and physical sciences, whereas only about 16% of American students are enrolled in these fields. We could use these people—and many of them wish to stay—if our immigration laws would only permit people with these skills to stay. Many of them are in public universities, supported by public funds. Years ago New York State tried to limit this public education to citizens, and the Supreme Court struck down that move. But the Court missed the importance of a critical moral question: by the time a person has reached college age, why would it not be apt to ask, Are you clear on your own moral commitments? Are you clear on the character of that political regime that commands your allegiance in principle? For if you are committed, say, to using your skills as an architect and engineer to help Albert Speer work out ways even more efficient for shipping people to killing centers , or to be an engineer for Saddam Hussein, what moral principle would oblige us to tax the American people for the sake of perfecting skills for the service of an evil regime? And would it be gross, or reflective of a narrow parochialism that we even raise the question? Or would we show a respect for the student himself as a moral being, with serious commitments standing before him? Or show that we as a country do take, as profoundly serious, the moral terms on which we live together?

All in the Family

That brings me, finally, to this place and to a day for the celebration of families. The point has been aptly made that the biblical injunction, honor thy father and thy mother, could not have been referring simply to the biological father or mother, for in that case we would be enjoined to honor the man who sired us in the course of a rape. But “duties” or “obligations” are moral terms, and they flow only to the people who have fulfilled the moral office of parenting, the people who have been there to nurture, to protect, and sustain.

Aristotle said that the polis, the political order, was prior in the order of nature to the family. This urbane man certainly knew that people were perfectly capable of having sex even when their governments broke down. But that was different from a family. For what constitutes a family? Would it be two people—or several joined together in a polygamous or polyamorous ensemble? Would it be two people of the same sex, the same species? What constitutes a family is something that has always depended on the moral understanding that pervades the community and finds expression in its laws.

Our late friend, Allan Bloom, wrote that “the children who are the products of nature and real love lack something that can be provided only by law and its constraints.” He went on to say that

it is only within the context of the law that a man can really imagine that the offspring from his loins can people the world. The law that gives names to families and tries to insure their integrity is a kind of unnatural force and endures only as long as does the regime of which it is a part.

Those laws on marriage invited us, as parents, to say the most telling words that parents may say, as they claim their children as their own, and do it through that simple device of imparting a name. As they do that, they replicate those words spoken by God in relation to Israel, the words that any parents are invited to speak in accepting their vocations. And is there finally anything simpler or more decisive than those words that come back to us from Isaiah: “Fear not: for I have redeemed thee, I have called thee by thy name, thou art mine.”

This is a day when we celebrate again the parents who have given their names to children, borne the responsibilities for them, and the students who have borne their own responsibility, in a handsome way, by working faithfully to justify the sacrifices made for them, and to learn what this faculty has sought to teach.

Hadley Arkes is Edward Ney Professor of American Institutions at Amherst College. The author of many books, including Natural Rights and the Right to Choose, Arkes sits on the editorial board of Public Discourse.

Copyright 2009 the Witherspoon Institute. All rights reserved.

Dear Josh:

I return in the end to Aaron [another student at the dinner]. He was thoughtful enough, honest enough, to recognize that Obama’s position on the Born-Alive Infants’ Protection Act did indeed come down to this: that so committed is he to preserving that right to abortion unimpaired, unrestricted, that he is willing even to withdraw the protections of the law from children born alive. That is, infanticide outright. That notion no longer shocks because it represents what truly has become the liberal principle on the issue that has become for my old party the central and defining issue. It is the anchor of rights of sexual freedom, the domain of privacy that means the most to the members of the party. But the result, as Aaron recognizes, is that to be a Democrat and liberal now is to accept the notion that there is no wrong in infanticide. Or to put it another way, Democrats are now prepared to say, “Yes Infanticide R Us. But it is, in the scale of things, no big deal. Or at least not a ‘deal-breaker.”‘

I gather that the liberals might be willing to protect the child at some point, but they cannot offer us a coherent account that incorporates in any way a respect for the life of the child. Perhaps the loss of the child will make the parents unhappy, and so we act to avoid the unhappiness of the parents, not out of respect for the child. For as Aaron recognized, there is no principle that would protect the child that would not also come into play to protect the very same child, the very same human, months and years earlier, even when she is in the womb.

As you may recall, in my talk the other night I drew, as an analogy, the complaint made by the historian J. G. Randall over the performance of Lincoln and Douglas during their famous debates in 1858. His complaint was about the unwarranted prominence that these two men were willing to give to that vexing moral issue of slavery. His condemnation ran in this way:

With all the problems that might have been put before the people as proper matter for their consideration in choosing a senator–choice of government servants, immigration, the tariff, international policy, promotion of education, west ward extension of railroads, the opening of new lands for homesteads, protection against greedy exploitation of those lands
. . . encouragement to settlers . . . improving the condition of factory workers, and alleviating those agrarian grievances that were to plague the coming decades–with such issues facing the country, those two candidates for the Senate talked as if there were only one issue.

That complaint, read today, is bound to strike readers as churlish, even oafish. And yet why? Is it wrong because we have come to regard that issue now, in our own day, as one we happen to care about? Or is it because there was truly something more fundamental in that question of just who were those beings who were the objects of concern in all of these other issues? As I argued, the issue had to run back to the root of things, to what John Paul II crystallized as the question of “the human person”: Who, after all, are the persons whose injuries count as we scan the landscape and notice injuries or injustices that call out for remedies at the hands of the law?

I don’t think you’ve quite appreciated what a challenge that question offers to the coherence of the liberal position on everything else that liberals now profess to stand for. Take any issue. Are you concerned about people losing their homes to foreclosure? People losing their jobs in the financial turmoil? Well, can you explain just why any of these people should elicit our concern? You don’t know much about them except that they are humans. But you know exactly the same thing about the child in the womb. If the hurts and pains suffered by these people somehow matter, how would you explain why the pains suffered in abortion do not matter? (As Judge Casey managed to establish, in the case on partial-birth abortion in New York, the people doing the grisly partial-birth abortions, puncturing the skull of the child, with her legs dangling, never thought of even using an anesthetic.) If the loss of a job or a home matters, why not the loss of a life? You yourself said that the loss of Iraqis lives is just as serious as the loss of American lives. Apparently, you’ve backed into the critical premise that “all men are created equal”; that all human lives (I take it) have a claim to our concern. Well, then what? If you mean “all,” then why are 1.2 million lives taken in this country each year in abortions somehow worth less, with less of a claim to your concern, than the thousands, or even scores of thousands, lost in the war?

This is a problem for liberalism. I was a liberal and a Democrat years ago, but this issue turned me, for it has to call into question everything that a liberal would claim under the name of liberalism. With this matter of abortion, the liberals have backed themselves into the old principle of the Rule of the Strong. Those who have power over others are more real than the ones who are at the mercy of their power. The interests of the strong, in this setting, claim precedence over the interests of the weak. Step by step liberals have stripped themselves of any claim to be the party of liberal generosity, expanding the circle of those who are protected. It has happened so subtly that people may not be aware of it any longer. But now we look up–as Aaron looked up–and say, in candor, Yes, that is who we are, and what we have become. We cannot tell you any longer, as Democrats and liberals, that we reject infanticide, because we cannot reject it without calling into question that which we have come to care about more than we care about anything else.

I take Aaron to have it exactly right. And so the question I’d put in turn is: How can you stand there and tell me that you are a “liberal”–and more deeply, How can you possibly give a coherent account of yourself?

That was the question really before us last night. That was a fine beginning for the conversation, and if you are serious about having that conversation, I’m open. I do have to break away now. But let me say again, I don’t love ya any the less for what you’ve said in the course of this conversation, but love ya all the more for your willingness–and your respect for your friends gathered around you–to enter the conversation in the first place.

Hadley Arkes is Edward Ney Professor of American Institutions at Amherst College. The author of many books, including Natural Rights and the Right to Choose, Arkes sits on the editorial board of Public Discourse.

Copyright 2008 the Witherspoon Institute. All rights reserved.