Bench Memos

Law & the Courts

A Response to Ed Whelan

My late leader, the first Mayor Daley in Chicago, famously complained that “I have been vilified, I have been crucified, I have been . . . criticized.” But now my friend Ed Whelan has offered a criticism of me with a sharp edge, even in these pages that were once home to me. Whelan has accused me of setting up a “straw man” in the piece I wrote in the Wall Street Journal — it was a critique of what has been served up to us over the past 40 years as a morally empty “conservative jurisprudence.” Whelan curiously jumps to the charges of a “straw man” as he overleaps the main argument in the piece: The originalism offered us these days is a truncated originalism, quite detached from the understanding of those true originalists, the Founders, about the moral ground of the laws and Constitution they were putting into place. Lawyers such as Alexander Hamilton and John Marshall had the knack of the tracing their judgments back to those anchoring truths that formed the ground of those judgments. They were the truths that the Founders had drawn upon in shaping the Constitution — they were there before the Constitution, and as Hamilton and Marshall recognized, they would be there even if there were no Constitution. (See, for example, Hamilton in the Federalist No. 33.)

Whelan jumps to the issue of a “straw man,” and what is it? He claims that a key argument of mine was “patently false.” I had said that the dissenters in Roe v. Wade had quite ignored the impressive brief put before them, woven of embryology and principled reasoning, to show that the offspring in the womb had been human from its first moments and never a mere part of the mother. The lawyers sought to show why the laws in Texas were justified in extending their protection to the child in the womb. But the dissenters, I said, Justices White and Rehnquist, “were content to rely on the point that abortion was nowhere mentioned in the Constitution.” This charge, said Whelan, is “patently false.” And he followed through strongly with the avowal that “I am not aware of any originalist who has ever been ‘content to rely on the point that abortion was nowhere mentioned in the Constitution.’”

But may I offer in turn the “straw man” that Whelan evidently missed (and a dear friend to us both), the most notable originalist of all, Justice Antonin Scalia. In a line perhaps all too easy to forget in Stenberg v. Carhart (in 2000), Justice Scalia declared in dissent:

If only for the sake of its own preservation, the Court should return this matter to the people—where the Constitution, by its silence on the subject, left itand let them decide, State by State, whether this practice should be allowed. Casey must be overruled. [Italics added]

Whelan glides past Scalia, back to the dissenters in Roe. Justice White (joined by Rehnquist) said, “I find nothing in the language or history of the Constitution to support the Court’s judgments.” Is that not clear: that he finds nothing in the “language” composing the text? As for Rehnquist, he would insist that the asserted right to an abortion is not “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Once again there is an appeal to history or tradition, in large part because the rights engaged here are not mentioned in the text. But the deeper reason for this appeal to history or tradition is the long receding confidence that there really are any moral truths that can supply a firmer ground for our judgments on the things that are right or wrong. Our dear friend Justice Scalia appealed to history precisely because he thought it would be easier to get a consensus on the historical record. He despaired of reaching any consensus on the grounds of our moral judgment (as though any real truth depended for its validity on “consensus”).

It was the reworking of an ancient question: Is the old good because it is old; or has it become old because there is something about it enduringly good? Lyman Trumbull, steering the 14th Amendment through the Senate, assured his colleagues that there was nothing in that amendment that would threaten those barring interracial marriages in the states. That understanding was firm and settled as anything that could fix the “original understanding” of the men who drafted and voted for the 14th Amendment. And yet the fact that this understanding is fixed in the historical record does not prevent us from invoking, in our own day, a more demanding moral argument about the meaning of “racial discrimination.” But what some of my friends seem to miss is that the reasoning may come into play on our own issues as well: We can cite an impressive record, at the time of the 14th Amendment, to show many states moving to bar abortions. But the number of states we cite here, in making the count, cannot itself carry the argument. Those earlier statutes were drawn with a compelling mixture of scientific evidence and moral conviction. If we would sustain those statutes now — or sustain other statutes like them, yet to come — it is precisely because the evidence and reasoning behind them are as compelling and true now, in our own day, as they were then. We need not — and cannot — carry the argument by citing the box score of the people who voted on our side in the mid 19th century.

The curious and unsettling thing here is that Ed Whelan has so evidently absorbed the moral skepticism that has fueled the conservative justices, the ones who preferred to invoke history and steer around the moral substance at the heart of these cases. If Whelan is to be taken literally here, he regards claims to moral reasoning as suspicious on their face precisely because he thinks they involve no more than an appeal to personal and subjective feelings. And so he says:

• that the duty of Supreme Court justices is not to indulge their own moral preferences in interpreting the Constitution.

•  [Arkes] thinks it proper for justices to impose their own moral readings on the Constitution.

In other words, moral judgments are merely expressions of personal feelings with no evident claim to truth. For if there were such truths, the judges would not be merely relying on “their own moral preferences” or “their own moral readings.” James Wilson and other Founders took as the first principle of moral and legal judgment: that it makes no sense to cast moral judgments of right and wrong on people who cannot control their own acts. And so we say that “we don’t hold people blameworthy or responsible for acts they were powerless to affect.” That anchoring axiom threads through many parts of our law, from the insanity defense to the case against racial discrimination. When a judge invokes this anchoring truth, would Whelan really say that he is indulging merely his “own preferences” or his “own readings”?

But if there is any lingering doubt on this matter, it is dispelled when Whelan says, rightly, that I would regard the moral readings offered by judges on the Left as “unsound.” Since he himself denies that moral reasoning has any necessary or plausible role in legal judgments, he doesn’t “see how it is right in principle or — given the massive left-wing bias of the elites from which judges are drawn — beneficial in practice to legitimate the broader practice.” But if Whelan credited for a moment that there really were moral truths to reason about, the obvious remedy to the overreaching of the Left is to show precisely why their reasoning has been specious and false. It is telling that he finds the remedy in simply avoiding moral reasoning altogether as some clever stratagem — and as though judges could get through their days without any serious reflections on the ground of their judgments on those matters of “right” and “wrong.”

Ed Whelan and I were colleagues and allies for several years at the Ethics and Public Policy Center. But the very title of that center would not have made much sense if we supposed that moral reasoning involved nothing more than an appeal to our “own” feeling or preference without any standard of truth to govern those judgments. We should be the last ones to join the Left in denying that there are any moral truths for reason to discern.

Ed Whelan and I have been allies for many years, and the vital things that connected us still do. But what is involved here is an argument within the family of conservatives, and the issues here run deeper, to the moral ground of the Constitution and our judgments. Ed and I have been divided on these questions, but the redeeming thing is that neither one has given up entirely on the possibility of bringing the other to his side.

* * *

Whelan raised some minor points, and I would raise two.

  • Whelan professes to be truly puzzled as to how moral reasoning could have come into play in the cases of same-sex marriage: “Does Arkes believe that the case against judicial invention of a constitutional right to same-sex marriage depends in any way on making a moral argument against same-sex relationships?” Well, the argument came into play finally in Chief Justice Roberts’s dissent. He offered a substantial argument there to make the case for marriage as we have known it, as the union of one man and one woman. That argument about the substance of the law would have shown why there were compelling reasons to respect the justification of the law that confined marriage to a man and a woman. And any reasoning of that kind would of course have implied something critical in what was missing in same-sex relationships as “sexual” relationships.
  • Whelan asked why the “truncated originalism” of Justices Alito and Kavanaugh would not have been enough to carry the decision on transgenderism. If Whelan returns to my piece he will find there the sense that it truly should have been enough to settle the judgment in that way: that it was just implausible to believe that the people who drafted and passed the Civil Rights Act of 1964 ever thought that it would cover people who professed to have changed their sex through a flight of their own imaginations. That should have been enough. And yet it didn’t persuade the textualist Gorsuch. Nor would it have worked if the Left had played the Lyman Trumbull card: We have experienced an enlarged sense of what counts as “racial discrimination” since Trumbull assured his colleagues that the new 14th Amendment would not challenge the laws that barred interracial marriage. The argument would surely have been made now that we have come to a comparably enlarged view of what we mean by “sexual discrimination.” I submit that the only — and most decisive — way of meeting that challenge was to appeal to those deep, objective truths among the meaning of sex that will never change: that if we are to survive as a species, we must be indeed constituted for that telos, or purpose, as males and females. But it is the appeal to those deep and necessary truths that has been studiously avoided in the truncated originalism that we have come to know.
Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College, the founder of the James Wilson Institute on Natural Rights & the American Founding, and the architect of the Born-Alive Infants Protection Acts.


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