A review by Andrew McCarthy of a new book by Hadley Arkes, the Edward Ney Professor of American Institutions and Jurisprudence at Amherst College, is most illuminating. McCarthy brings out the difference between Arkes’s approach to the Constitution and that of stricter originalists such as Bork and Scalia. Arkes is an originalist in the sense that he believes the Constitution is based on natural law. But he also believes that the courts should invoke natural law in interpreting the Constitution. The stricter originalists such as Bork believe that natural law must be left to the democratic process, the people through their elected representatives, because the “first principle of the free society vouchsafed by the Constitution is that the people are sovereign.”
The nexus of the difference emerges in Arkes’s discussion of a 1905 Supreme Court decision Lochner v. New York, in which the Court struck down labor-law limitations on the hours bakery employees could work, finding a “liberty to contract” in the Fourteenth Amendment. This was an instance of what is called “substantive due process.” Arkes defends the decision, but McCarthy says strict originalists oppose it because the political right of the “liberty to contract” that the Court found in the Fourteenth Amendment is a “sheer judicial invention.” McCarthy says that judges “must wrestle with first principles” in construing “the original understanding of specific constitutional principles,” but “substantive due process,” which imposes “the judicial perception of first principles[,] usurps the capacity of free people to govern themselves.”
This conflict of views would seem to illuminate other aspects of the debate over the Constitution and related issues, such as whether our country is founded on a set of principles only, or on the people, which would presuppose pre-existing cultural and social institutions in addition to natual law.