At National Review, J. Joel Alicea: Anchoring Originalism (reviewing Mere Natural Law: Originalism and the Anchoring Truths of the Constitution, by Hadley Arkes (Regnery Gateway 2023)). From the introduction:
Is originalism a morally empty jurisprudence? For decades, various scholars working within the natural-law tradition have argued that the answer is “yes.” To these scholars, because originalism purports to resolve constitutional disputes based on an analysis of the Constitution’s text and history, it implausibly attempts to prescind from making moral judgments or — worse — presupposes a form of moral relativism. Now, Amherst professor emeritus Hadley Arkes — one of the long-standing champions of this critique of originalism — has brought forth an elegantly written book to make the case against originalism and in favor of what he sees as an approach to constitutional adjudication that is more consistent with the natural law.
Mere Natural Law has all of Arkes’s warmth and charm, and he delivers his criticisms with respect for those with whom he disagrees. But these criticisms are mistaken. His critique of originalism proceeds from an incomplete description of the natural-law tradition, overlooks important distinctions and counter-arguments, and, as a result, misapprehends the implications of the natural law for cases such as Dobbs v. Jackson Women’s Health Organization, the Supreme Court’s 2022 decision overruling Roe v. Wade, and Planned Parenthood v. Casey.
And from later on, as to the central point of disagreement:
This brings us to Arkes’s second argument: Judges should rely on substantive moral principles drawn from the natural law in adjudicating constitutional disputes, since to do otherwise presupposes a form of moral relativism. He asserts that originalists have lost the conviction “that there really [are] genuine moral truths accessible to reason,” such that Dobbs, for example, rests on the assumption that “there is no truth on this matter [of abortion] for judges to declare.” But it is not true that originalism — because it purports to adjudicate cases based on text and history — presupposes moral relativism.
From the natural-law perspective, originalism rests on the notion that political authority exists solely to secure the political common good of a society. Because every person in society has an obligation to seek the common good (since it is essential to their own good), and because political authority is the means by which they can secure it, the people of a society are vested with political authority. When the people constitute a government, they transmit a portion of their authority to that government for the sake of the common good, reserving to themselves the power to alter or abolish the government. Because the natural law does not require any particular form of government or allocation of power — even if it may preclude some — the people’s authoritative decisions about those questions take on moral significance. To undermine the allocation of power set by the people is to undermine the people’s legitimate political authority, and that necessarily harms the common good, since the people’s legitimate authority is essential to securing the common good. The only way for public officials to preserve this legitimate authority is to understand the people’s decisions as the people themselves understood those decisions. Originalism rests, at bottom, on our moral obligation to secure the common good and the attendant obligation to preserve legitimate political authority.
Arkes at no point considers any of the natural-law arguments for originalism, even though scholars have offered many (such as the one outlined above). Perhaps the reason he does not do so is that he — remarkably — never discusses the traditional natural-law definition of law as framed by Thomas Aquinas: “an ordinance of reason for the common good, made by him who has care of the community, and promulgated.” That definition is not a matter of linguistic practice; it is a substantive definition of what a law ought to be, given law’s moral purpose. Arkes’s omission of Aquinas’s definition is consistent with his often-idiosyncratic understanding of the natural law, one in which principles of reason are conflated with principles of morality, foundational Thomistic concepts are overlooked, and figures with varying degrees of proximity to the natural-law tradition (e.g., Kant, Lincoln, and assorted Supreme Court justices) are brought together.
Had Arkes focused on Aquinas’s definition of law, he would have been forced to ask: Who has care of the community in the United States? That is, who is the legitimate lawmaker in the United States? The answer — as deduced from the natural-law tradition’s teaching on the nature of political authority — is the people, the same people who, the Preamble declares, “ordain[ed] and establish[ed]” our Constitution. Once we understand this, the judicial obligation to obey the Constitution as the people understood it becomes clear — as does the moral force undergirding Dobbs.
Related: As noted earlier, John McGinnis also has a review of Professor Arkes' book from an originalist perspective.
Posted at 6:08 AM