From roughly the mid-twentieth century until the present day, many controversial liberal moral ideals have become enshrined in American law, not by democratic consensus through ordinary legislation, but by constitutional adjudication in federal courts. The liberal preference for judicial resolution of disagreement is not coincidental. As Alasdair MacIntyre has observed, “the mark of a liberal order is to refer its conflicts, for their resolution, not to those [philosophical] debates but to the verdicts of its legal system. The lawyers, not the philosophers, are the clergy of liberalism.” The use and abuse of the judiciary by liberals has produced a predictable reaction from conservatives. Democratic sovereignty, skepticism about the scope of judicial review, and a general rhetoric of anti-elitism have emerged as prominent conservative themes.
Emphasis upon these themes has brought a measure of success for conservatives. During her confirmation hearings, Sonia Sotomayor felt compelled to pay lip service to conservative rhetoric about judicial restraint and strict interpretation of the law, even though she and her supporters on the left believed none of it. By contrast, neither Samuel Alito nor John Roberts was pressured during their confirmation hearings into uttering liberal shibboleths about the Constitution being a “living document.”
Whatever its rhetorical success, the tidy contrast between “liberal” judicial activism, which goes beyond the Constitution and imposes morality from the bench, and “conservative” judicial restraint, which merely interprets the positive law, cannot survive strict scrutiny. Such is the main lesson of Hadley Arkes’s latest book, Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law (Cambridge University Press). Arkes is a conservative and although he would (rightly) reject the characterization that he advocates “imposing” morality from the bench, he does claim that judicial interpretation of the law is a properly moral task. Tracing out the path of the positive law, Arkes argues, inevitably leads back to “the very logic of morals itself.”
In Constitutional Illusions Arkes revisits in eight chapters a number of the moral, political, and legal problems provoked by American constitutional jurisprudence, which have been the subject of his scholarly and popular writing for nearly fifty years. It is the burden of Arkes’s argument in the book to show that moral reasoning is inescapable—for the average man just as much for the rarified jurist—and to demonstrate the seamless connection between law and morality. Arkes takes as his data the case law of the federal judiciary and the writings of Lincoln and the American founders, and in this fashion Constitutional Illusions complements two of his earlier books: First Things (1986) and Beyond the Constitution (1990).
A number of the present book’s chapters appeared previously as self-standing essays or lectures, and as a whole the book lacks the unity and development of an original monograph. Nonetheless the chapters are interconnected and suggest a host of interesting lines of comparison. The most theoretically ambitious and perhaps least successful part of the book comes in the second chapter, where despite protestations against theorizing, Arkes sketches a theory of the natural law. Arkes comes into his own, however, with an incisive discussion of legality and ex post facto laws, a powerful defense of the much-maligned Supreme Court case Lochner v. New York, and an extended reflection on the significance of “prior restraint” in First Amendment law. This last reflection forms the heart of the book. Arkes closes with a consideration of the truth in “legal positivism,” by which Arkes means the theories of constitutional interpretation advocated by Antonin Scalia, Robert Bork, and the late William Rehnquist. Here Arkes focuses on the issue of racial discrimination in Bob Jones University v. United States and gives his most sustained assessment of conservative judicial positivism, which appears as a frequent target in previous chapters.
Conventional judicial conservatives will be most provoked by Arkes’ defense of Lochner v. New York, in which the Court overruled state employment regulations in the name of libertarian ideals about freedom of contract. Conservatives say that Lochner opened the door to activist liberal judges who want to impose their utopian vision on an unwilling populace. But this is a pragmatic objection, not a principled one. If there is an essential connection between morality and the positive law, as natural law theorists would contend, then how can morality be filtered out from adjudication of the law? The positive law inevitably has an open texture, which judges must fill with something when a hard case demands an actionable decision. Therefore, even if one continues to believe that the majority in Lochner overreached, Arkes seems correct on the matter of principle: constitutional adjudication necessarily involves moral reasoning.
A great pleasure of Constitutional Illusions is Arkes’s winsome, conversational prose and a remarkable skill for framing abstruse legal problems in gripping historical and political narratives. He retrieves the subject of law from the academic specialist and returns it to the citizen without suppressing any of its many complexities. Arkes’s gift comes to the fore in the three chapters on “prior restraint,” particularly during the seventh chapter on the saga of Frank Snepp, the Vietnam-era CIA agent whose memoirs were censored by court order. Arkes’s telling aggravates one’s sense of the absurdity of his treatment at the hands of the Supreme Court. Arkes also shows the incoherence in judicial doctrine about prior restraints on free speech, as the Court moved from misstep to mishap, beginning with Near v. Minnesota (1931) and proceeding to the Pentagon Papers fiasco in 1971 before making an abrupt and still underappreciated about-face in the Snepp case.
Arkes attributes the Court’s incoherence to self-imposed obscurity. The Court is unwilling to consider cases patiently and disinterestedly on their merits and in light of America’s founding compact and its clearest expositors. The tangles of precedent and exigencies of momentary politics complicate what is after all a very ordinary task:
Beneath the layers of the law, embedded now in custom, is a structure of moral argument and moral understandings. Those anchoring, first principles explain, at the root, the grounds of our judgments on the things that are right and wrong, just or unjust. If we can return to the root, with an inquiry that is distinctly philosophical, we can expect to tap again the fuller principles of the law; and in opening them anew, see again their fuller reach.
What sort of restraints on the press count as unlawful restraints of freedom of speech, and again what sort of retrospective laws count as tyrannically ex post facto: these questions Arkes argues can only be resolved by returning to consider the moral basis of the original legal protections. As Arkes points out, jurists such as Bork and Scalia do return to the moral bases of legal protections and principles, in spite of their professed judicial positivism, when faced with foundational questions of interpretation. Arkes shows that Scalia’s forceful dissent in Gonzales v. Oregon over physician-assisted suicide, for example, is arbitrary to the extent he tries to avoid the properly moral question about whether doctors may kill patients entrusted to their care.
If Arkes is in large measure successful in teasing out the law’s moral implications, he is less successful in addressing the content of those implications head on. In chapter two he presents a fusionist account of the natural law, drawing upon Aristotle, Thomas, Kant and Lincoln’s writings on the injustice of slavery. But Arkes does not show how this eclectic group can get along together. On the one hand, Arkes evinces an unmistakably Thomist sensibility about the ordinariness of the natural law. Moral reasoning is not a specialized technique, but a generic human exercise, which is ratified by the fact that “the common law persistently assigns to ordinary people a responsibility to deliberate about the principles of lawfulness even if they have not been trained in the law.” On the other hand, Arkes shares the Kantian ambition to demonstrate that immorality always involves logical contradiction, and that moral knowledge is as evident as the principle of non-contradiction. Not only would Aquinas and Aristotle reject this latter ambition, but it also fails to explain the fact of contemporary moral disagreement. MacIntyre’s work on the nature of moral traditions might fill this gap for Arkes, but adopting it would require moderating the claims of his project.
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. Arkes seems to conflate this flawed sense of universality with the culturally independent objectivity of morality, but accepting the former does not help to show the truth of the latter. When someone acts he acts under many maxims, and so the imperative to universalize “one’s maxim” is forceless without substantive criteria to determine which maxims. For example, suppose that I lie to my client in order to secure a windfall profit. Some descriptions of my action might produce a contradiction if I tried to will those descriptions as a universal law, but other true descriptions plainly would not. 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, but which Kant mistakenly rejected as “heteronomous”.
Arkes’ regular invocations of Kant and Aquinas invite broadening the discussion further beyond American jurisprudence, and to do so might address another weakness in his account of natural law, viz. his view that law gains its authority from the consent of those it binds. Stirring rhetoric aside, the authority of law cannot reside in the consent of the governed. Whether or not people consent to being governed, there are basic human needs that cannot be served apart from society, and the existence of society presupposes authoritative coordination. Positive law arises and persists in order to perform the task of social coordination and the performance of this necessary task generates the obligation to obey the law. In recognizing this, Aristotle and Aquinas had greater insight into the nature of law’s authority than the modern liberal tradition of which the American founders were a part.
Constitutional Illusions is after all about the illusions obscuring the American Constitution, and so Arkes cannot be faulted for focusing on the American tradition in his discussions of natural law. But if the American political tradition itself is deficient in expressing aspects of the natural law, as I think it is, then the touchstone of the natural law will have to be sought farther afield. As for constitutional interpretation, however, Arkes offers us in Constitutional Illusions archetypes of judicial reasoning—if only our judges would learn from them. Arkes demonstrates the vitality of conservative legal thinking by proving that judicial conservatism is not narrowly reactive to liberal trends on the Court, and he issues a stark challenge to the conservative jurists whose misguided lawyerly humility encourages them to deny the moral grounds of their vocation at law.