Hadley Arkes is the Edward N. Ney Professor of Jurisprudence and American Institutions emeritus at Amherst College, the founding director of the James Wilson Institute on Natural Rights and the American Founding, and author of Mere Natural Law: Originalism and the Anchoring Truths of the Constitution. He spoke with City Journal associate editor Daniel Kennelly.
Your approach to the Constitution differs from that of originalists like Robert Bork or Antonin Scalia. Was originalism, in your view, flawed from the beginning, or did it become so as it evolved over the past few decades?
What we have been offered for the past 40 years under the banner of “originalism” has been a truncated understanding of the American regime and the Constitution, a theory quite detached from the moral ground of the Constitution as the American Founders understood it. Conservatives backed into this crabbed view of the Constitution as they recoiled from the “activism” or “raw judicial” power of judges in inventing new rights nowhere contained in the Constitution. Most striking, and most notable, was the “right to abortion.” As the line went, “abortion” is not contained in the Constitution, and therefore federal judges have no ground on which to proclaim rights to abortion emanating from it. But the Constitution said nothing about “marriage” when the Supreme Court struck down the laws barring interracial marriage in 1967. And there had long been reason to make abortion part of the “business” of the federal government, as in dealing with abortion in military hospitals and diplomatic outposts abroad, as well in the Territories and the District of Columbia. (Two years before Roe v. Wade, the Supreme Court had sustained the laws on abortion in the District of Columbia in Vuitch v. U.S.)
The Court had brought forth inventive and specious new rights, but instead of engaging their considerable wit in explaining what was specious and indefensible in those cases, conservatives retreated to the mechanistic jurisprudence of saying that these things were not in the text. That reflex would in turn beget another mantra, even worse: that when a judge looks outside the text of the Constitution, he is merely “looking inside himself”—that what he can find are only his “personal” and subjective views. What was curiously and decisively ruled out—by highly schooled men—is that moral truths exist outside the text; that we are not in the domain of rampant subjectivity as soon as we depart from the text. The American Founders persistently appealed to those moral truths or anchoring axioms that were there before the text. They were the deep principles of law that the Founders had drawn upon as they framed the Constitution. The Constitution then was not the source of their understanding of the principles of law. As the historian Jonathan Gienapp has remarked, the Founders did not think it necessary to put in the text of the Constitution everything they knew about the deep principles of law.
But the emptiness of the current version of originalism and textualism revealed itself with Neil Gorsuch and the cases on transgenderism in 2020 (Bostock v. Clayton County and Harris Funeral Homes v. EEOC). Gorsuch was the highly touted successor to Antonin Scalia, thoroughly vetted for his command of originalism and textualism. That learning in the revered texts brought forth from him this judgment: that if Anthony Stephens earnestly believed himself to be a woman, everyone around him would be compelled now to respect that judgment or else put himself and his employers in peril for sustaining a “hostile work environment.” To reach that judgment, Gorsuch had to hold that the laws that barred discrimination based on “sex” would now cover this enlarged understanding of “sex” and its “orientations.” For Gorsuch’s conservative colleagues, it seemed utterly implausible that anyone in Congress framing and voting for these laws in 1964 and 1972 would have understood them to cover people who dreamed up their own vision of what they wished their sex to be. Gorsuch had to bring to bear all of his studied arts in “textual construction” to find in the text something he could claim was plausibly there, even if his closest colleagues—and perhaps he himself—recoiled from that reading.
In Henry Taylor’s famous line, “It sometimes happens that he who would not hurt a fly will ruin a nation.” In his earnest pursuit of textualism, Gorsuch produced a decision that overnight swept away moral inhibitions on guiding youngsters into “transitioning” and surgeries that would disfigure their bodies. He set off a dynamism that has been growing powerfully, sowing confusion and wreckage in families, and promising to disfigure the battered culture even further.
But the problem here could not have been solved by reviewing the legislative record, in the statements set down by legislators. Nor could it have been settled by consulting what the dictionaries had to say about “sex” in 1964. When Lyman Trumbull steered the Fourteenth Amendment through the Senate, he had to assure his colleagues that nothing in this new amendment would challenge those laws in Illinois as well as Virginia that barred marriage across racial lines. Our understanding of what constitutes “racial discrimination” has been rightly filled out since then, and we would surely hear now that the understanding of “discrimination on the basis of sex” would have to be amplified in the same way. The only way to meet this argument was to move beyond the text to the inescapable objective truth that was there long before the text. As the Catholic Church’s Congregation for the Doctrine of the Faith once put it, there has not always been a Hungary or an Italy, but as long as there are human beings there must be males and females. That is the telos or purpose or meaning of sex; it is exactly why we are constituted as males and females. And yet to make this move beyond the text to that inescapable truth that stands at the heart of the question—that is a move that stands well outside the playbook of conservative jurisprudence.
Conservative jurisprudence would pride itself on a mode of reasoning that steers carefully around the matters of moral substance at the heart of these cases. And that style of jurisprudence showed itself, in its full and faded colors, when the Court finally struck down Roe v. Wade last year in Dobbs v. Women’s Health Organization.
Why publish a critique of originalism at the moment of its greatest triumph, as Dobbs overruled Roe?
I was pleased to see the Court slay the Great White Whale of Roe v. Wade. But I began to write in the pro-life cause before Roe along with friends like Michael Uhlmann and John Noonan, and what the Court accomplished in Dobbs was not what we had set off years ago to accomplish. For it was not a matter of inadvertence that the Court deliberately withheld the premises vital to the pro-life movement going forward both in the States and at the federal level—most notably, in holding back from recognizing the standing of the child in the womb as a human being. The dissenters in Dobbs actually nailed this point: they said that “the majority takes pride in not expressing a view ‘about the status of the fetus’”—that “the state interest in protecting fetal life plays no part in the majority’s analysis.” Recall Brett Kavanaugh: that some pro-lifers actually believed that the fetus is “human”—as though embryology had not been telling us anything for about a hundred years. (This was the price that Samuel Alito had to pay for that fifth vote).
And the outcome was a political landscape tilted now strongly against the pro-lifers. One Midwestern senator told a friend of mine that, with Dobbs decided, he would no longer need to speak about this subject of abortion. The conservative majority sought to put the matter back into the political arena, and now we find a cluster of Republicans in Congress thinking that the federal government has no rightful role to deal with this matter. But abortion has long been the business of the federal government, as in abortion in military and diplomatic outposts abroad, in the Territories and the District of Columbia. The levers of federal authority will be used one way or another, either to undercut the laws in the pro-life states, or to promote the protections of life. But it will be even harder now to pass our bill to restore the penalties, civil and criminal, that had been stripped years ago from our original Born-Alive Infants’ Protection Act, to protect newborns who had survived abortions. The Dobbs decision has saved lives, but it has deepened the burden now on the pro-life movement.
Why “mere” natural law? What’s behind the C.S. Lewis echo in the title?
I’m drawing on his attentiveness to the way in which serious moral reasoning emerges even in the conversations of children. The youngsters are not merely squabbling over matters of likes and dislikes; they are more frequently engaged in arguments about right and wrong. They will appeal to rules (“you promised that we’d play basketball today and baseball tomorrow”), and they show a search for guiding principles (“he was here first!”). But in any case, as Lewis points out, “arguments” make no sense unless even the children assume standards for judging right and wrong answers.
In that style, I’m appealing here to that great Scottish philosopher Thomas Reid, who was read closely by American Founders such as James Wilson and John Adams. Reid made the impressive case for those “principles of common sense” that the ordinary man not only has to know but must virtually take for granted in getting on with the business of life. These are the things that ordinary people have to understand before they start trafficking in “theories.” And so, before the average man would start bantering with David Hume about the meaning of “causation,” he knew his own active powers to cause his own acts to happen. If that ordinary man were told that Jones, accused of a serious crime, were in intensive care following surgery when the crime was committed, he would wonder why Jones was being prosecuted. In his own way, that ordinary man would back into that proposition that Reid, as well as Immanuel Kant, regarded as the first principle of all moral and legal judgment: that we don’t hold people blameworthy and responsible for things that we are powerless to affect. As Reid said, “No axiom of Euclid appears more evident than this.” And as simple as it is, we can show how the implications flowing from that axiom run as threads throughout our law.
What the American Founders understood about natural law—and the moral ground of the Constitution—is that the ground of the natural law would be found precisely in those anchoring axioms of common sense that the ordinary man readily grasps, even if he has not been burdened with a degree in law. Jefferson caught the sense of this when he said in a letter that one could “state a moral case to a ploughman and a professor. The former will decide it as well, and often better than the latter, because he has not been led astray by artificial rules”—call them “theories.”
What I try to show, then, at key turns, is how some of the true “first principles” in our law are indeed instantly understood by ordinary people, even though the vocabulary of lawyers or philosophers doesn’t come as readily to their lips. But from those anchoring points, we can draw out the strands that run pervasively through our laws.
What does the future hold for originalism in a post-Dobbs world?
That future may be foretold in the commentary that Christopher DeMuth offered on my book, where he said that “the Supreme Court’s quest for a morally agnostic Constitution may have run its course, and many are seeking a way forward.” We’ve seen many people, young lawyers, and judges drawn in that way to our side—for with the cases on trandsgenderism and others, they have the sense, as they say, that things have gone “awry.” What might we look forward to? I was buoyed by a call from a dear friend who considers himself a firm Originalist. He said that my book offers us the chance to see again a fuller originalism—the Constitution connected once again, as it was at the beginning, to those deep moral truths that the Founders drew upon as they framed it. And men such as James Wilson, Alexander Hamilton, and John Marshall would persistently trace their judgments back to those anchoring truths as they sought to explain the grounds of their judgments—and this remarkable Constitution they had wrought.
What are you reading?
As usual, I’ve been bopping back and forth among a few books, so appealing in their own way.
I’m rereading two of my favorite stories from Henry James, “The Next Time” and “The Coxon Fund” (where Mrs. Saltram professed to have washed her hands of her former husband, but as James says, evidently “she had carefully preserved the water of this ablution and she handed it about for inspection”).
But I’m in the middle also of James Merrill’s memoir, A Different Person, along with Iris Murdoch’s The Sea, The Sea, and The Metaphysical Animals, the story of four remarkable women marking off paths in philosophy at Oxford from the 1930s on: Elizabeth Anscombe, Murdoch, Mary Midgley, and Philippa Foot.