Bench Memos

Once More unto the Breach

Matthew Franck, an old friend, is a man of “right opinion” — he persistently lands, in his practical judgments, in right places — but some of us find ourselves puzzled by the principles of judgment that get him there. Among friends a certain manly battering may come with the territory and even, at times, a touch of libel. But in his reply to my piece in Public Discourse, Matt may have gone a bit too far. Among the dismissive gestures, the mildest is probably the bandying of names. If I’m to be likened to Johnny Rocco, the Edward G. Robinson character in Key Largo, I guess I could invoke, for him, the legendary Alfred E. Neuman (of Mad Magazine), who is so blissfully unaware of the things of the world that deserve his fuller notice. In the case of Franck, he appears unaware of the fact that he keeps backing into the axioms of moral reasoning, or natural law, even as he seeks to make the moral case for a jurisprudence that rules out, emphatically, that moral reasoning.

In my piece in Public Discourse, I decided to leave out the part in which I sought to correct the caricature of my work that Franck has been pleased to keep repeating. And since I cast up no protest there, he evidently regards himself as free to keep repeating it. So let me just say this to put this matter aside: He cites my book Beyond the Constitution on the subject of those principles of natural right lying beyond the text — the principles that would be there even if there were no Constitution. In my teaching, those principles are there to guide people in legislative and executive authority, and not only judges. Franck knows that I’ve resisted over the years the claim that judges have a monopoly on the authority to interpret the Constitution. He also knows that Robert George and I have been part of a project over 30 years to recover the teaching of natural law, and that teaching has never been taken to license, as Franck puts it, “a roving judicial power.” I’ve made the case for judges rightly cabined by the rules on “standing,” so that the judiciary doesn’t become merely a third chamber of the legislature. I’ve held to the conviction that unelected judges may not properly review and second-guess decisions taken on the battlefield, including decisions on enemies captured and detained. And the people who read me in NRO and Public Discourse would know that I’ve favored, for many years, the Lincolnian argument on the political branches countering the decisions of the courts. It takes a certain untethered commentary, then, to set me in the camp of judicial imperialists.

To take an old line from a famous incident of confused identities at Amherst, I’m beginning to think that Franck is addressing here, as a target, “the wrong Rev. Jackson.” The things he imputes to me cannot be found in my writings, and some of his assertions do border on the libelous: “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.” Where are those “so many words”? This account is more likely to be given by someone who had never read those writings. But in layers of misrepresentation nothing could beat this passage: “Arkes endorses the very practice inaugurated by Taney [in the Dred Scott case] — so long as willful judges come down with better results than Taney did.” There are three or four serious distortions in that passage, and I wonder if Franck was counting on the likelihood that I’d lose my readers if I sought to unravel them here.

But that is a longer story, better left to another time, while we get closer to the core of the matter. Franck insists that we must understand what constitutes law, rightly understood.. It must adhere to certain defining principles — e.g., it must be “generally applicable” and not cast as edicts on particular persons. Franck recoils from my point that most of the principles he relies on here are not to be found in the text of the Constitution. They must have, then, some other source of validity. How is it that we know them — and what makes them rightful and true?

Franck says that these principles “were discernible by the interpretative acts 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.” Has it really escaped his notice that in this passage he talks all around the subject without addressing that decisive question I posed: What makes these principles true, and therefore “legitimate” for judges to use in interpreting laws? He tells us that judges somehow know that they are “there” though they are not “there” in the text. The irony here is that Franck had suggested that there must be something foggy or infirm about the principles of natural law because they depend on being recognized “rationally as right and just — to five Justices of the Supreme Court.” I raised the challenge of why his own lofty principles, not contained in the text, would not be subject to the same crippling doubts.

But all of these are steps on the way to the heart of the matter, which can be tested in their practical application to two of the gravest issues of our laws and politics: abortion and marriage.

On abortion: We are given two paths in dealing with the question in Roe v. Wade. One takes the line that abortion is nowhere mentioned in the Constitution, and so there is no ground on which judges can pronounce any “rights” involving abortion. Following the other path, the judges can take account of the case made by the state of Texas, drawing on the evidence of embryology, woven with principled reasoning. The state showed that there was no principled ground on which the child in the womb could be pronounced as anything other than a human being from its first moments. Therefore, there was ample justification for the laws enacted by the state to protect these small human beings. Now, what is it, in Franck’s view, that makes this second path of argument illegitimate? For that is exactly what is at issue here: the claim that some grave constitutional principle makes it illegitimate for judges to raise questions about the substance of any law by examining in a rigorous way the reasoning and the evidence that could “justify” the law.

On the matter of marriage, we heard once again, in the reaction to Obergefell, that “marriage” was not in the text of the Constitution. But as I pointed out in my piece, the embarrassment for this argument is that “marriage” was not in the text of the Constitution when the Supreme Court decided Loving v. Virginia in 1967 and struck down the laws barring interracial marriage. Franck tries to supply an answer here, and I submit that his answer reveals the grounds of its own refutation: “The 14th 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 14th Amendment, rightly understood, has to say on the subject of racial equality, not what it has to say on the subject of marriage.”

But of course, as Franck knows, the Supreme Court has never itself explained that principle that bars discriminations based on race. For if it had, that principle would bar “racial preferences,” a point made sharply by Justice Scalia. The Court has simply reiterated again and again that the judges over the years have come to reject those discriminations based on race. And so Matthew Franck may be coming to this fork in the road: If he is not making a moral argument here, an argument in natural law, is he simply relying on the brute positivism of the decisions handed down by judges since the 1930s? Is the rule on racial discrimination true only because judges exercised the power of handing it down? If Franck rejects, then, the path of moral reasoning outside the text, is he simply relying on the power of judges über alles — over text, over the “original understanding,” and over moral reasoning itself?As Franck knows, I would certainly agree with him that the Loving case could have been decided by invoking the principle on racial discrimination and saying nothing at all about marriage. (See my First Things, ch. 15.) But this argument, made by Franck, runs into the problem of that “textualism” and “realism” that he favors. For nowhere in the text, of course, does it say that the principles in the 14th Amendment make it illegitimate to discriminate on the basis of race in regard to marriage. As Franck surely knows, Lyman Trumbull, in the debate over that amendment in the Senate, assured his colleagues up and down that nothing in the amendment would threaten those laws — either in his own state of Illinois or in Virginia — that barred marriage across racial lines. And if he had not been able to offer that assurance, the 14th Amendment would have had virtually no chance of passing. The Equal Protection Clause does not mention “race,” and Trumbull was clear that it had no bearing on the matter of marriage. Franck is appealing, then — let us be clear — to nothing in the text of the Constitution, and to an understanding quite at odds with the “original understanding” of the men who framed and voted for that amendment. To me it looks as though he is making an independent judgment on the wrongness of making discriminations based on race, even in marriage. That is the argument I’ve made myself, but it sounds suspiciously like a moral argument, or an argument in — pardon the expression — natural law.

As Franck knows, the proponents of same-sex marriage insisted that the discrimination involved in confining marriage to a man and a woman was quite as wrong as the discrimination that barred marriage across racial lines. My friends have contested that point, and I’ve argued that that is precisely where the argument had to be joined in showing why marriage may rightly be confined to a man and a woman. That meant drawing, for example, on the kinds of arguments assembled by Robert George, Sherif Girgis, and Ryan Anderson in their book What Is Marriage? Franck remarks that, with all due “affection” for the authors, “their argument in that book is not the one a judge can or should properly make in rendering a constitutional judgment.”

And that is exactly what this argument finally comes down to. Franck has settled himself within the Witherspoon Institute, which reflects the project on natural law that Robert George has undertaken. And so it may be of more than passing interest to note that, in my own conversation with Professor George, he was quite eager for Judge Feldman in New Orleans to draw upon those substantive arguments in the book on marriage as he prepared an opinion that could make its way up to a higher court. Professor George evidently does not share Matthew Franck’s conviction that the kinds of arguments that he, Girgis, and Anderson made “are not the one[s] that a judge can or should properly make in rendering a constitutional judgment.” Robert George seems unaware of that moral principle, so clear to Matthew Franck, that would (a) profess to respect the moral reasoning of the natural law — while (b) barring it emphatically from the reasoning of the courts.

As Franck has mentioned, we’re planning to have a meeting in which he and I and others can come together to discuss this issue of “substantive due process” and argue it through. But even before we have that meeting, it looks as if this serious question should be discussed seriously at home, in the Witherspoon offices in Princeton.

I’ve respected Matt Franck’s judgment on many things, even if I haven’t shared his reasoning, and I’m willing to indulge the possibility that, in his concern for “substantive due process,” he may have hold of something. But there are those who think that the argument against substantive due process just can’t meet a demanding philosophical challenge. If this exchange has some redeeming value, it would come in sharpening the question and getting us all clearer on whether there is indeed something here of enduring moral import — something that makes a profound difference for the jurisprudence we would seek to shape.               

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.


The Latest