At Law & Liberty, Hadley Arkes: Natural Law and Originalism—What Is the Argument Really About? From the introduction:
I want to thank my friend, John McGinnis, for the good things he had to say about my new book, Mere Natural Law. But in his more critical commentary he seemed to be talking about some book other than the one I wrote.
For one thing, readers might have been left wondering about the meaning of that unusual title, Mere Natural Law, drawing something from C.S Lewis. It was pointing to an understanding of natural law grounded in the precepts of common sense that ordinary men readily grasp. It was not a “theory” or a body of grand sentiments hovering in the sky. That title was reflected then in the argument running through the book. John McGinnis, as savvy as I’ve known to be, never explained anything about that argument connecting the chapters, and reflected in the title. That became the source of an ideological filter, I’m afraid, that distorted the account he gave of the book.
But let me clear away some ground first.
McGinnis calls me again to the virtues contained in the very structure of our Constitution, the virtues explained further by him and Michael Rappaport in their work on the “supermajoritarian” Constitution. I don’t see how it passed his notice that I have defended and celebrated that structure of the Constitution, in this book and in everything else I’ve written. I’ve spent a career teaching the writings of the American Founding, and I don’t have to be enjoined to respect the Constitution as it was written.
The argument in the book was not against Originalism, but a truncated Originalism, which detaches the Constitution from the moral ground of the Constitution, as the leading Founders understood it. John Marshall, James Wilson, and Alexander Hamilton had a remarkable knack of tracing their judgments back to those axioms or anchoring truths that the framers had drawn upon in shaping the Constitution. They did that in the course of applying the Constitution to the issues and cases coming before them. They certainly did not think that when a judge departed, as they did, from the text of the Constitution that he was merely “looking inside himself,” that he was drawing merely on his most “personal” preferences. Plainly, they did not hold to the heresy that there were no moral truths outside the text of the Constitution. …
And at National Review, Hadley Arkes: The Nature of the Law – A Reply to J. Joel Alicea. From the introduction:
How can I complain of Joel Alicea? I’ve known him for a long while, and he is characteristically cordial, even gracious — as he credits my writing, and my charm — in his review (“Anchoring Originalism,” July 10) of my book Mere Natural Law. I think, though, that he gave the readers a serious misreading of the book, and I hope that my own corrective will be received in turn in a cordial way.
Alicea touches the main line of my argument in the book — before he takes a deft turn and leads the reader away from the center of the argument. Quoting me, he aptly says that I take as “the very ground of Natural Law” and “the principles that govern our judgments in Natural Law” those precepts of common sense that can be grasped by ordinary folk. Alexander Hamilton caught the core of the matter in Federalist No. 31, where he wrote of those “primary truths, or first principles, upon which all subsequent reasoning must depend.” These are things to be grasped per se nota, as true in themselves. One of the things grasped in that way is the “law of contradiction,” that two contradictory propositions cannot both be true. And what is grasped in the same way, by ordinary men, is the axiom that was taken by Immanuel Kant, Thomas Reid, and Thomas Aquinas as the first principle of all moral and legal judgment: that it makes no sense to cast moral judgments of praise or blame on people for acts they were powerless to effect.
That axiom not only underlies the insanity defense; it may explain finally the deep wrong in principle of racial discrimination. More than that, the implications springing from this axiom run widely through our laws. James Wilson and John Marshall followed Hamilton in recognizing axioms of this kind as those “primary” truths that form the ground of our law. The critical point here is that these are not theories. It’s not a theory that we may not hold people responsible for acts they were powerless to effect, any more than it’s a theory that two contradictory propositions both cannot be true. What Alicea seems to miss is that a system of law drawn from axioms of this kind cannot be merely a theory of natural law, but the real thing. …
Professor Arkes' book is Mere Natural Law: Originalism and the Anchoring Truths of the Constitution (Simon & Schuster 2023).
Posted at 6:01 AM