My old friend Hadley Arkes responds today, at Public Discourse, to my essay in the same place last week—which was in turn a response to his thoughts posted at the Library of Law & Liberty regarding my article on the due process clause(s) published last winter in American Political Thought. We may carry on this argument in person in a public forum somewhere in the coming months, so here I will keep my final thoughts very brief.
Professor Arkes’s response is, for the most part, unresponsive to the criticisms I lodged against his argument last week. He has nothing to say, for instance, in reply to my comment that he has committed the fallacy of composition, in moving from particular legal principles embedded in the concept “due process of law” to global judgments about whether a lawful policy choice of a legislature is “justified” or not. He makes no comment on the striking difference between the entire pre-1857 tradition of adjudicating cases under the rubric of due process, and the illegitimate juridical revolution against that tradition accomplished by Chief Justice Taney in Dred Scott. Since Arkes endorses the very practice inaugurated by Taney—so long as willful judges come down with better results than Taney did—this should not surprise.
Rather than reply to all my arguments, Professor Arkes probes what he evidently believes to be my single weakest point—that none of the principles I identified as valid outgrowths of centuries of juridical reflection on the meaning of “due process of law” is actually “contained in the Constitution” as a textual matter. I had said in my essay that actually those principles are “in” the Constitution, by which I meant that they were discernible by the interpretive arts that judges legitimately employ with legal texts in the adjudication of cases. They are not “in” the text as a simple matter of words on the page, but they are “there” nonetheless in a way that judges, who have a special task to do particular kinds of justice, can invoke them and enforce them. Those principles are what “due process” means. It doesn’t mean less, but it assuredly does not mean more.
But Professor Arkes, like Johnny Rocco in Key Largo, wants more. He wants judges to invoke and “enforce” principles that are not “in” the text from any point of view, but are under, over, or “beyond” it. Just as I said in my essay, Arkes is not interested either in history and precedent (he affirms that judgment in so many words), or even in the words the framers took such care to put into the Constitution, anywhere in its text. He cites, for instance, the argument made at Philadelphia by two of the framers (James Wilson and Oliver Ellsworth) that there was no need for the ex post facto clause to be included. But this was a losing argument, and it would not surprise me to learn that Ellsworth and Wilson were glad, years later, to have lost it. They were certainly wrong, and their fellow framers were right to contradict them.
Professor Arkes believes that the best argument against what the Court recently did in Obergefell is not to argue that the Constitution has nothing to say on the subject of marriage, but instead to argue (I translate, I think, accurately) that justice and nature have a great deal to say on the subject—and so therefore does the Constitution, read through Arkesian lenses. I can say, with the greatest affection for my friends Sherif Girgis, Ryan T. Anderson, and Robert P. George, who wrote What Is Marriage? Man and Woman: A Defense, that their argument in that book is not the one a judge can or should properly make in rendering a constitutional judgment. (And actually, I think they would all agree with me about this.) The Constitution is silent on the subject of marriage. The ground of decision in Loving v. Virginia was not the Supreme Court’s considered judgment on the nature of marriage. It was simply this, as I explained last spring in the pages of NR (quoting Chief Justice Warren’s terse opinion in the case): “The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations.” 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.
Two final miscellaneous points. First, I do wish Professor Arkes had not insinuated that I am skeptical of moral truths or natural law. In the first publication in which I ever sparred with his famous argument, I contended that it was precisely the principles of natural law embraced by the American founders that forbade the extension of a constitutional judge’s jurisdiction to questions of natural law that are “beyond the Constitution.” I still think that is the best understanding of Alexander Hamilton, John Marshall, and even James Wilson.
Second, I cannot think what Arkes means by his remark that “all of [his] friends who thought that the Supreme Court should strike down Obamacare three years ago in NFIB v. Sebelius” wanted the justices to invalidate the “policy choices” Congress had made. I do not recall anyone making such an argument. I remember people arguing that Congress could not pursue its policy choices by means that violated the Constitution.
If Professor Arkes and I do schedule a forum on this subject, I will be sure to announce it here. Meanwhile, I invite interested readers with access to a subscribing library to read my fuller treatment of the strange history of due process in the pages of American Political Thought.