Bench Memos

Agreements and Disagreements Among Friends

Travel has prevented me from replying until now to Hadley Arkes, who responded at length here last week to my last salvo in our ongoing argument about natural-law reasoning and the due process clause.  Since I do not wish to exhaust our readers—or ourselves—any more than necessary, I will keep these final comments very brief.  I’ll begin by noting where we actually agree.

First, Professor Arkes and I both agree with Abraham Lincoln about the dangers of judicial supremacy.  I’m delighted to link arms with him in calling our fellow citizens to resist the Obergefell ruling.  So I am genuinely troubled to see my friend bristle at what he takes to be my setting him “in the camp of judicial imperialists.”  Here is what I said two weeks ago:

[I]f the judges are authoritative arbiters of the “logic of morals,” we have subjected ourselves to an unelected, life-tenured legal elite whose reach exceeds our grasp. In practical terms, whatever we might say about right and wrong, he who says Lochner cannot unsay Roe, or Obergefell, or even Dred Scott—even as he might resist a decision’s effect politically.

It’s a small thing, perhaps, but I did not say that in Arkes’s view judges are the “authoritative arbiters of the ‘logic of morals,’” as though they had exclusive title to the property in our constitutional order.  But surely they are authoritative in some sense in the cases that have properly come before them.  So here let me clarify my point: I think there is something very uneasy and volatile, in practice and perhaps in principle, in Professor Arkes’s approach to constitutionalism.  In my view he both opposes judicial supremacy and invites a species of judicial activism bordering on judicial tyranny.  It may be possible logically, as his thought shows, to hold both these positions.  But the second position, I think, leaves the first one with its work cut out for it.

Second, Professor Arkes, I’m glad to see, now says that he “would certainly agree” with me that “the Loving case could have been decided by invoking the principle on racial discrimination and saying nothing at all about marriage.”  This is all I ever claimed in my previous installment in our exchange, when I said: “The ruling was right, or wrong, depending on what the Fourteenth Amendment, rightly understood, has to say on the subject of racial equality, not what it has to say on the subject of marriage.”  Arkes goes on to say that there’s a good deal of work to be done of reasoning through just what discriminations the Fourteenth Amendment forbids, and on what ground even racial discrimination is proscribed.  I agree, and never said otherwise.  But it is interesting that Arkes seems to regard the question of the amendment’s original meaning, where interracial marriage is concerned, to be entirely foreclosed by the solo testimony of Lyman Trumbull on the subject.  If original understanding is thought to govern interpretation, and if that is the original understanding (as Arkes says it is), then either there is a powerful case that Loving is wrong, or there is a powerful case that originalism is wrong.  This is worth discussing further.

But, third, that would be venturing into another argument altogether and should be left for another forum.  This particular exchange began with Professor Arkes reading, and offering generous criticism of, my article on substantive due process from last winter’s American Political Thought.  Since the early rounds of our discussion we have strayed very far from the subject of the due process clauses.  I suggest we could fruitfully return to it, by asking again what the historically freighted text “due process of law” means.  I am pretty sure I know, after the researches that informed my original article.  And I am quite sure it does not mean “the application of the logic of morals to the policy choices made by legislatures in prospectively and generally regulating conduct.”  Anyway, I look forward to our continuing the conversation, to see what else we might agree on.




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