Magazine | October 4, 2010, Issue

Laws of Thought

Constitutional Illusions and Anchoring Truths: The Touchstone of the Natural Law, by Hadley Arkes (Cambridge, 280 pp., $25.99)

On entering the Catholic Church earlier this year, Hadley Arkes explained that he had become convinced that the Church was fundamentally a truth-telling institution. He arrived at this judgment after repeatedly seeing the Church act as the lone voice of reason defending unpopular moral truths in an age of relativism. From his academic perch, Arkes, too, has defended these moral truths, casting doubt on the claims of some overly excitable commentators that the defense of life or the protection of marriage is the work of “Christianists,” “theocons,” or other Bible-thumping theocrats. Arkes’s latest book, written well before his baptism, shows that the anchoring truths of the natural law are accessible to reason and provide the proper lens for seeing beyond the illusions of some of the trickiest cases of constitutional law.

A professor at Amherst College since 1966, Arkes is one of the leading proponents of natural-law jurisprudence. His new book, Constitutional Illusions and Anchoring Truths, can profitably be read as the culmination of many diverse yet intertwined strains of Arkes’s thought. From moral philosophy to applied ethics and constitutional theory, the foundational role that moral reasoning plays in public life unites all his life’s work.

Arkes first made a splash on the political-theory scene with his 1981 book The Philosopher in the City. In what he described as “a manuscript in which Immanuel Kant meets Mayor Daley,” Arkes showed how principles of moral judgment — not only expediency or power — affect daily political realities, from the demands of civility to racial equality, from public education to the regulation of vice. His 1986 tome First Things provided a more elaborate philosophical defense of these first principles of moral judgment, drawing on the insights of Kant, Reid, and Aristotle. Comparing moral science to other sciences, Arkes argued not only that there are truths of morality, but that there are necessary moral truths — first principles of practical reasoning — that we regularly use in our judgments, knowingly or not. He then applied his moral theory to topics ranging from war and welfare to abortion and privacy.

In Beyond the Constitution, published in 1990 to the acclaim of political and legal theorists, Arkes made his most extensive case that interpreting the Constitution requires going beyond the written text to the principles that informed its drafting. With a particular focus on the Bill of Rights, Arkes showed how only a philosophical understanding of what was deserving of protection could identify which rights we possess by nature (and, thus, which ones the Framers sought to protect in the Constitution). He further elaborated this natural-rights jurisprudence with The Return of George Sutherland (1994). Through a detailed treatment of the jurisprudence of this anti–New Deal Supreme Court justice, Arkes argued that both conservatives and liberals failed to grasp the moral grounding of Sutherland’s legal opinions and thereby lost sight of key principles of interpretation.

#page#These points all converged in Arkes’s most penetrating analysis, Natural Rights and the Right to Choose (2002). This book included a detailed history of the “Born-Alive Infants Protection Act,” an act that Arkes drafted and defended through passage in Congress, to establish the “most modest first step” in explaining the logic against abortion “rights.” As Arkes showed in this book, the entire system of natural rights falls to pieces if a so-called natural right to choose abortion — i.e., to choose to kill another innocent human being — is upheld. Once, in the name of “privacy” or “autonomy,” a right to kill one’s child is established in law, the moral logic that explains the entirety of our other (real) rights is eviscerated. Having pointed out in this modest way that surely the child who survives an abortion attempt and is born alive deserves the protection of the law, Arkes worked this premise backwards to show that the same protection of law is deserved by the child in the process of being born (refuting justifications of partial-birth abortion), along with the child waiting to be born.

Constitutional Illusions, published this summer, builds on Arkes’s insistence that moral judgment pervades all politics, that it relies upon standards of judgment that are rationally accessible, and that understanding our Constitution requires grasping these moral standards. Provocatively, he challenges the conventional wisdom on issues such as “prior restraint,” substantive due process, and ex post facto laws.

Arkes opens the book with a defense of the natural-law foundations of our positive-law rights. Are the rights protected in our written laws bestowals on us lowly citizens by beneficent earthly rulers? Are some constitutional regimes better than others, and, if so, why? Answering these questions, Arkes insists, requires appeal to the natural law. He argues, for example, that the Founders understood that our right to speech comes not from the First Amendment that enshrines it, but from nature. Understanding the amendment’s protections, then, requires a philosophical grasp of its underlying moral principle.

While much contemporary work in natural law — especially the legal theories of John Finnis and Robert George — relies heavily on Aristotle and Aquinas, Arkes finds his main inspiration in Kant’s philosophy and in his own teachers’ seminal works: Leo Strauss’s Natural Right and History and Harry Jaffa’s Crisis of the House Divided. From the fact that we are rational animals who can give — and demand — reasons for action (and thus justifications of state coercion), Arkes develops the groundwork for a categorical imperative to act on a universalizable maxim. Failure to do so, Arkes argues, forces one into contradiction: “To the extent that we would govern our acts by principles of judgment that are true, the standards that are grounded in this way, in propositions that must be true of necessity, have an unsurpassed claim on us.” Arkes sees something like this at play in Lincoln’s insistence that “there was nothing one could cite to disqualify the black man as a human being, and the bearer of rights, that would not apply to many whites as well.” Force the principle of your judgment to apply to all similar cases, and bad reasons for action drop out of the picture.

With this theory of practical judgment in place, Arkes turns to a series of puzzling cases to pursue “the thread that runs through them and connects everything,” that is, “the move back to first principles and the moral ground of the law.” He begins by defending what has become viewed as indefensible economically conservative judicial activism: the majority opinion in 1905’s Lochner v. New York. Arkes argues that the Supreme Court, in striking down a New York law that limited the number of hours one could work in a bakery, simply protected “the ‘natural right’ of the worker to his own labor,” labor that “did not belong, in the first instance, to the state.” Of course, one could not contract one’s labor for immoral or otherwise unlawful or unhealthful acts. But Arkes sees in the Court’s opinion the sound judgment that the New York statute was ultimately an arbitrary regulation, and thus an infringement of liberty. As the Court said, “No trade, no occupation, no mode of earning one’s living, could escape this all-pervading power.” And as Arkes notes, the Court “seemed to recognize that even people in prosaic callings may find it quite as useful to have the freedom that we are quicker to attribute to the professional classes.”

#page#Arkes also reconsiders the question of “prior restraint,” arguing that the Supreme Court doctrine against laws allowing the government to review and prohibit the publication of dangerous information is wrong, and incoherent: The reasoning in Snepp v. U.S. (1980) — which allowed the CIA to redact writings by Agency members before publication — contradicts precedents in the Pentagon Papers case (1971) and Near v. Minnesota (1931) without actually overturning these faulty cases. As Arkes sees it, to bring criminal or civil suit after the fact against someone who has recklessly published unjustifiably harmful information — e.g., classified documents that reveal undercover agents’ locations to an enemy, or reckless defamations — is to get the moral logic of responsibility backwards. Criminal or civil sanctions cannot repair one’s unjustly damaged reputation, to say nothing of one’s unjustly taken life. Instead, Arkes argues, the Court should allow the government to seek “prior restraint” in the publishing of such sensitive information, subjecting it to Court review before the damage is done. Granting that a suit seeking reparations after the fact is a valid legal action shows that the Court understands the wrong committed, but fails to see that once there are valid grounds for suspicion, the burden of proof should lie on the would-be publishers to justify their intended action.

Those familiar with Arkes’s work will find much to praise in Constitutional Illusions. But the standard criticisms will be made by the standard critics. The Aristotelians and Thomists will think his account of natural law is too Kantian, and thus too thin because insufficiently grounded in an understanding of human flourishing. Conservative jurists who think our constitutional regime leaves questions of the natural law entirely to elected legislators will think Arkes allows too broad a role for judges’ moral judgments — and his concluding “good word on behalf of the legal positivists” will do little to assuage their worries. All of these criticisms have some merit.

But none is fatal. Though Arkes does not claim the charism of infallibility, he has proven over his long academic career that he, too, is a truth-telling institution. For those who only now have recognized this truth about Arkes, reading Constitutional Illusions may prove to be a critical step in their own intellectual conversion.

– Mr. Anderson is editor of Public Discourse: Ethics, Law, and the Common Good, an online publication of the Witherspoon Institute.

In This Issue


Politics & Policy

Beyond Sanctions

The U.S.-led financial-sanctions campaign currently under way against Iran is biting, but it isn’t enough. To change the Iranian regime’s nuclear calculus, the administration and the international community need to ...
Politics & Policy

Dim Idea

Arriving late one night into Tokyo, I checked into my hotel room to discover the world’s most complicated toilet. There were hoses and nozzles where hoses and nozzles probably shouldn’t be, ...


Politics & Policy

Obama’s U.N. Record

Barack Obama will make his second address as president to the opening of the United Nations General Assembly on September 23, and engage in the customary ceremonies, social events, and ...
Politics & Policy

The Great U-Turn

Admirers and detractors of the United States agree on one point: This country is unusually resistant to the social consensus and set of structures broadly known as “social democracy” or ...

Books, Arts & Manners

Politics & Policy

Moot Causes

Where did the idea come from that, if a black student studies hard in school, he is “acting white”? Stuart Buck — a Harvard Law graduate who is currently a ...
Politics & Policy

Laws of Thought

On entering the Catholic Church earlier this year, Hadley Arkes explained that he had become convinced that the Church was fundamentally a truth-telling institution. He arrived at this judgment after ...
Politics & Policy

Film: Total Immersion

At times, it can feel as though television’s auteurs are making the movie industry irrelevant. Fifty years after phrases like “idiot box” and “vast wasteland” entered the American vocabulary, the ...
Politics & Policy

Bliss Was It . . .

The 1924 presidential election was, on the face of it, a snoozer. The major-party candidates were Calvin Coolidge (Republican) and John W. Davis (Democrat). Both were conservative — sensationally so ...


Politics & Policy

The Week

‐ Soon the Republicans may be able to claim the first nonwhite Speaker of the House. ‐ President Obama’s long-stated view is that his predecessor’s tax cuts for the middle class ...
The Bent Pin

Fed Up

Optimists don’t mind if you eavesdrop on them. They welcome it, in fact, because it helps them spread their fiendish gospel. Here is what the one behind me in the ...
The Long View

“How We Can Help Improve Your Image”

Notes to a PowerPoint presentation to: The Islamic Faith By ImageSpinners, LLC Slide 1: Photo of the Planet Earth from space morphing into ImageSpinners logo. “Who We Are” ImageSpinners, LLC, is a New York–based public-relations ...
Politics & Policy


GREAT LAKE WINTER A crack in ice will join as well as rend. In every ear that thinks it’s safe from harm, The snap can clearly cause, or not, alarm. But those who hear ...

The Teat Eternal

The New York Times Sunday magazine is where you find nice glossy ads for expensive consumer goods alongside 10,000-word stories on why expensive consumer goods do not make us happy. ...
Politics & Policy


Ayn Rand, Christian Soldier? “The Greatly Ghastly Rand” (August 30), by Jason Lee Steorts, analyzes Ayn Rand and her writings accurately and not altogether without sympathy. Allow me to add my ...

Most Popular


‘Epstein Didn’t Kill Himself’

It was just one more segment to fill out the hour, and thereby fill the long 24 hours of Saturday’s cable news on November 2. Or so it seemed. Navy SEAL Mike Ritland was on the Fox News program Watters World to talk to Jesse Watters about trained German shepherds like the one used in the raid that found ... Read More

A Defining Statement of Modern Conservatism

The greatest documents in American history never lose their ability to astonish. They deserve, and repay, careful study, and inevitably have contemporary resonances no matter how long ago they were written or uttered. There’s no doubt that Ronald Reagan’s “A Time for Choosing” belongs in the top ranks ... Read More

What Do Republican Voters Want?

The latest entry in the post-Trump conservatism sweepstakes was Marco Rubio’s speech at the Catholic University of America in early November. The Florida senator made the case for a “common-good capitalism” that looks on markets in the light of Catholic social thought. “We must remember that our nation ... Read More
White House

Impeachment Woes and DACA Throes

This excerpt is from episode 176 of The Editors. Charlie: Yesterday was the day on which the rain stopped and the sun hid behind the clouds and the eyes of the nation turned in unison toward Capitol Hill for the first day of public hearings in the impeachment of Donald Trump. The results of that first day were ... Read More