Letter to the Editor: Arkes vs. Schaefer

August 12, 2023

David Schaefer, a friend of many years and a classmate from the University of Chicago, has, for me, an enduring license to sail into me for anything I have written. For we had acquired, at Chicago, the temper of offering our critiques of one another without being overly worried about tenderness. Still, his criticisms of my book Mere Natural Law ("A Moral Hazard for the Constitution," July 30, 2023) were set against the places where he accorded firmly with my line of argument. He shares my concern for the way that even conservative justices have backed into assumptions of moral relativism when dealing with the regulation of speech. What is lost here is the moral ground of a civic order. Acts of speech can become instruments of serious assault, along with any other parts of our freedom. To lose all moral limits to the use of speech is to lose as well the moral ground for defending the goodness or rightness of free speech.

Professor Schaefer's concern, however, has been with an appeal to natural law that must detach itself at times from the text of the Constitution. But the American Founders drew on principles that were there before the text they framed—and they knew that those principles would still be there, as they knew, even if there were no text there. John Marshall said that it would be quite as wrong to compel people to make a contract they did not wish as to "impair" the obligation of a contract they had willingly made. Justice Story would later say that that point, that principle, would be true even if there was no Constitution. Much as John Quincy Adams would later say that the "right to petition" the government is simply implicit in the idea of a free regime: It would be there even if it hadn't been mentioned in the First Amendment; it would be there even if there were no First Amendment, and it would be there even if there were no Constitution.

Schaefer strangely claims that he knows of "no precedent for this understanding of the judicial role among the deliberations of those who wrote and ratified the Constitution." He could say that only if he has not been paying close attention. As I've shown in this book and others, the members of that Founding generation quite often appealed beyond the text of the Constitution to the principles that were there before the text—and doing it for the sake of explaining their judgments. Schaefer has apparently forgotten Alexander Hamilton's elegant account in Federalist 33, showing why the Supremacy Clause would be there even if it hadn't been mentioned in the Constitution, for it was baked into the logic of this government. And the "Necessary and Proper Clause," as he sought to show, was implicit in the very idea of a moral agent, reasoning about the rightful uses of his freedom.

But surely the most dramatic refutation of Schaefer's charge would be found in John Marshall's classic argument in Fletcher v. Peck (1810). The case involved the rescission of a grant in lands by the legislature of Georgia. Innocent buyers would be affected, and so this was clearly a case of "impairing the obligation of contracts" (Art. I, Sec. 10). But instead of handling it that way, Marshall did something far more elegant: He showed how the Contracts Clause could be drawn deductively from that deeper principle barring ex post facto laws. That principle was so bound up with the rule of law that James Wilson and Oliver Ellsworth thought it needless to mention in the Constitution. With that understanding in place, Marshall could go on then to a conclusion truly striking: Georgia, he said, was a great state, part of the American Union; but even if Georgia were a separate sovereign state, outside the union, outside the Constitution, and outside Art. I Sec. 10, this law in Georgia would still be wrong because its wrongness was rooted in a principle that did not depend at all for its validity on being mentioned in the text of the Constitution.

But when Schaefer turns to my treatment of natural law, he seems to detach himself from his methods long settled: The man who could deal with the most refined sentences in Montaigne suddenly gives the most caricatured account of my understanding of natural law and its bearing on that momentous issue of abortion. Montaigne here is replaced with the subtlety of The Tonight Show. Schaefer says I would simply "have declared practices like abortion and same-sex marriage wrong on the ground that they violate the principles of natural law." He treats the natural law as some magic word that is invoked. What he leaves out is the moral reasoning that forms the practical ground of the moral law. In Roe v. Wade the lawyers from Texas had drawn on the updated findings of embryology to put these points before the Court: that the offspring in the womb has never been anything other than a human being from its first moments, and never merely a part of its mother's body. With those points in hand the Court could simply have concluded here, as it has in other cases, that the government of Texas had established ample, compelling grounds to show why it was justified in enacting its law—in this case a law that cast protections over small human beings in wombs. And that bringing of moral reasoning to a practical judgment would do as much—or more—than a jurisprudence of natural law would require.

It is quite bizarre then to say, as Schaefer does, that I would have the Court "impose an outright ban on abortion." The Court cannot do such a thing. What the Court could have done, in 1973 or in 2022, is confirm that the child in the womb has the standing of a human being. It would then simply return matters to the states, inviting them to deliberate on the question of how the killing of these small human beings will be reconciled with their other laws on homicide. And if the Court had established that simple, decisive premise—that would have been quite enough to establish the ground for Congress to act under the 14th Amendment when blue states were systematically withdrawing the protections of the law from a whole subset of human lives.

But finally Schaefer surprises me by offering that most worn-out cliché we have seen: Liberal judges have made use of moral reasoning outside the text of the Constitution for the sake of establishing extravagant and implausible new "rights," and if conservatives engage in moral reasoning as well, the other side will do things even wilder. The ingenious solution here is for the conservatives to avoid altogether the moral reasoning that must ever be bound up with the law. As though that will somehow shame the judges of the Left and induce them to abate their passion to rule. But if we think that the judges have used specious reasoning to produce implausible "rights," the corrective surely is to show what is specious in their reasoning. The conservatives offer no solution here if they disarm themselves from the reasoning they need to shape a coherent jurisprudence.

Schaefer slips at last into an argument that is not only inapt but wounding: for he has evidently forgotten—or never read—the arguments I've made over the years, in other books, taking a firm Lincolnian line on the authority of the political branches to counter, narrow, and even overturn judgments of the Supreme Court. The Lincoln administration countered and overturned the decision in Dred Scott through a combination of administrative decisions and congressional legislation. If Schaefer had read me closely, he would know that, in my understanding, a jurisprudence of natural law would not involve judges winging it, with no discipline, with no moral or legal limits on their judgment. The judges who fit my description would have a sharper sense of the boundaries that restrain the reach and inventiveness of judges. But they would give us, beyond that, a law that can give a morally coherent account of itself.

Hadley Arkes
Ney Professor of Jurisprudence Emeritus, Amherst College
Founder and Director of the James Wilson Institute on Natural Rights & the American Founding

David Lewis Schaefer responds: Responding to my review of Mere Natural Law, my learned friend Hadley Arkes faults me for failing to acknowledge that the Founders, along with John Marshall, Joseph Story, and John Quincy Adams, grounded the Constitution in part on objective moral principles of natural law that they held to be true, even if the document never explicitly mentions them. But—leaving aside Arkes's disregard of the fundamental differences between Thomistic natural law (implicitly based in part on biblical faith) and its modern counterpart (ultimately derived from the quite different teachings of Hobbes and Locke, which ground men's duties on their natural rights, in contrast to both the classical and Christian views)—there is no disagreement between us on that point. The issue, rather, is how far it is the role of judges to ground their assessments of the constitutionality of governmental actions on intuitively known principles of morality, without any textual basis.

It is true, as Arkes observes, that in Fletcher v. Peck, John Marshall appealed to "certain great principles of justice, whose authority is universally acknowledged, that ought not to be entirely disregarded," in justifying the Court's abrogation of a corrupt land grant by the Georgia legislature. Such principles included, for instance, the fact that an individual's property cannot be seized without just compensation. Marshall proceeded to base the Court's decision, however, on the Constitution's contract clause, and ended his opinion (as Christopher Wolfe observes in his fine study The Rise of Modern Judicial Review) in a thoroughly ambiguous manner, saying that the legislature's act was rendered invalid "either" because it violated the "general principles" of America's "free institutions," "or" on account of its violation of the contract clause (my emphases). And as Wolfe adds, this was the only opinion—from relatively early in Marshall's long career—that "explicitly relied on natural justice as opposed to constitutional provisions." More generally, Wolfe observes, while judicial appeals to principles of natural justice as a basis for assessing state legislation "did exist during early American history," they were "very rare," and were "usually combined with an argument from the Constitution itself," or else were nonbinding dicta. Additionally, Wolfe notes that Story's Commentaries on the Constitution address the topic of judicial review solely as Marshall had described it in Marbury v. Madison (following, I add, Hamilton's justification in Federalist 78), as an instrument of defending the Constitution against legislative or executive actions that violated what Hamilton called its "manifest tenor" (that is, its obvious meaning).

The historical origins of judicial review aside, what Arkes's position seems to disregard is the problematic consequences (from both his and my point of view) that resulted when federal courts beginning in the mid-20th century not only altered the sense of key provisions of the Bill of Rights (notably, the First Amendment) in accordance with new conceptions of "morality," but also started to "incorporate" those provisions—originally a set of restrictions on federal authority—into the 14th Amendment, so as to authorize judges to alter or overturn state and local laws and practices that embodied what had formerly been taken for granted as the moral foundations of civic life. Hence, under the Warren and Burger courts, as Arkes rightly laments, the guarantee of freedom of speech was held to include the right to wear a jacket bearing the slogan "F— the flag" into a courthouse; in other cases he doesn't discuss, freedom of the press was interpreted to include the right to produce pornographic films and magazines; the ban on the establishment of religion was judged to prohibit a nondenominational blessing on a graduating middle-school class; and so on. Most egregiously and shamelessly, the Court invented a "right to privacy" supposedly generated by "emanations" from various passages in the Bill of Rights, paving the way for its "discovery" of a constitutional right to abortion.

Arkes, it seems to me, draws precisely the wrong lessons from these distortions of our system of constitutional government. Appeals to "natural law" will hardly serve to correct them, since—regrettable as this is—Americans, and especially judges and their "influencers" (law schools, law reviews, "prestige" media like the New York Times and Washington Post, and their Washington peers) no longer share the consensus on natural rights and even on the fundamental elements of civic decency that existed at the time of the Founding (and in large part until the middle of the past century). (A few decades ago journalist Tom Bethell invented the "Strange New Respect" award to describe how justices and federal officials previously thought to be conservative were honored on the front page of the New York Times Magazine in response and encouragement to what were thought to be signs of movement toward the morally libertarian and egalitarian Left.)

Our only hope for defending America's constitutional order against these judicial assault is the return to a text-based originalist interpretation of our nation's fundamental law. As noted in my review, to invite judges to base decisions on (what they regard as) the higher or "natural" law is to turn judicial deliberations into seminars on "moral philosophy"—situations in which, given the tenor of most law schools as well as philosophy departments, conservatives are likely to lose. (Dismissing this observation as a "cliché," as Arkes does, in no way refutes it.)

Doubtless, a textualist interpretation of the Constitution must also be "originalist" in that it interprets the words of that document (and of congressional enactments) in the sense the words commonly had at the time of enactment. Understanding the proper meaning of the constitutional text of course entails trying to grasp the reasoning that underlies it; but our primary source for appreciating that reasoning is the text. Simply put, Justice Gorsuch's reinterpretation of the 1964 Civil Rights Act to include "sexual orientation" as protected against discrimination under the rubric of "sex" was a willful misreading (perhaps animated by a longing for that Strange New Respect award).

In its Dobbs ruling, the Roberts Court properly absolved itself of having to decide how far, if at all, the Constitution guarantees a right to abortion, since the document gives federal courts no authority to decide such issues. Conversely, in its ruling that race-based preferences violate the Civil Rights Act (at least in the case of public universities), the Court was upholding the rule of law. Perhaps it is too late to reverse the judicial invention of a right to same-sex marriage. But we ought at least to pray that the Court will hold the line against those who would guarantee the right of parents—or, worse, of educational institutions—to authorize sex-changing surgery on minors.

I'm unsure what Arkes found "wounding" in my argument that would be redressed by considering Lincoln's view of the authority of the political branches of government to narrow or overturn Supreme Court judgments. But as Arkes knows, Lincoln did not claim that those branches could overturn the judgment in Dred Scott. Rather, he challenged, based on three criteria, its validity as a precedent. It would be up to future presidents and Senates, backed by public opinion, to deny it that standing. There's no disagreement between us on that score.

David Lewis Schaefer
Professor Emeritus of Political Science
College of the Holy Cross