Originalism Is Not Enough

The American Conservative today features a book review of a new book by Hadley Arkes. Here is the Amazon link for the book:

Mere Natural Law: Originalism and the Anchoring Truths of the Constitution

The review by Tom Shakely can be found here:

‘Mere Natural Law’ and the Anchoring Truths of Constitutional Order

Hadley Arkes’s latest is a cogent argument for why “originalism is not enough.”

The review is well worth reading in its entirety. The phrases “Truths of the Constitution” and “Truths of Constitutional Order” are well chosen, because these studies in the legal philosophy that undergirded our constitutional order—which is now in sad disarray—are indeed about truth. The truth of human nature and of human being in political order. What I’ll try to do is to bring to the fore some of the ideas in the review that may benefit readers from being made more explicit.

Shakely begins with a well expressed description of our current disorder and constitutional turmoil:

Our elites swear an oath to uphold and defend the U.S. Constitution, yet strangely lack consensus on the nature of that document. All the while, despite apparent political faction and multigenerational culture war, the basic governing philosophy of our elites appears oddly fixed, with the American people merely allowed to choose the speed at which they hasten political disorder but prohibited from correcting course.

The question virtually asks itself: How is it that Americans possess a founding document, yet “strangely lack consensus” on the nature and meaning of what that document purports to establish? The elites—officials and elected representatives—take an oath to uphold a constitutional order while deeply disagreeing about the very meaning of it. The final sentence calls to mind the old saw about Republicans: Their ambition is to manage the dissolution of America, of its constitutional order—not to arrest the slide into the abyss of disorder.

Shakely’s review, and Arkes’ book, is a call to recover

a true constitutional consensus that was not only more faithful to America’s Founders, but also consonant with the pre-Enlightenment classical legal tradition.

And so we see the major theme emerge. The Constitution that was written by the Founding Fathers and adopted by the nation, says Arkes, was a document that reflected a real consensus among Americans on the level of legal philosophy. That consensus is best understood as an attempt to embody the “pre-Enlightenment classical legal tradition.” In other words, the consensus that undergirds the Constitution—historically speaking—is informed by Enlightenment thought so much as it is by the philosophy of human nature and legal thought inherited by the Western world from the Greeks and Romans. But also from its Christian elaboration in Medieval and post Renaissance political philosophy—having imbibed the the ideas of Francisco Suarez indirectly—through Grotius to Locke. While Locke certainly did not accept the Neo-Scholastic philosophy of Suarez, many of Suarez’s ideas in political philosophy were eagerly adapted by non-Catholic thinkers such as Locke who were quite aware that they were drawing upon the political philosophy of a Jesuit. Judge for yourselves:

Suárez denies the patriarchal theory of government and the divine right of kings founded upon it, doctrines popular at that time in England and to some extent on the Continent. He argued against the sort of social contract theory that became dominant among early-modern political philosophers such as Thomas Hobbes and John Locke, but some of his thinking, as transmitted by Grotius, found echoes in later liberal political theory.

He argued that human beings have a social nature bestowed upon them by God, and this includes the potential to make laws. However, when a political society is formed, the authority of the state is not of divine but of human origin; therefore, its nature is chosen by the people involved, and their natural legislative power is given to the ruler.

As you can see, Suarez’s key ideas are clearly reflected in the preamble to the Declaration of Independence—whether or not Jefferson was fully aware of the actual origin of those ideas. Of course, Suarez himself was drawing upon a long tradition of political philosophy that stretched back through Thomas Aquinas (to whom Arkes devotes a chapter) and Augustine to the Bible and, ultimately, to Roman and Greek thinkers. It may be as well to compare the Wikipedia account of Suarez’s thought with the preamble to the Declaration. My contention is that the Declaration articulates a clear view of human nature in itself and in political society—which, as Suarez states, is part of Man’s God given social nature.

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Let’s go through this in bullet point fashion:

• “One people” is an assertion that, in accordance with Man’s nature as a social being—not an autarkic individual—humans naturely organize into corporate forms of social existence. This is a forthright rejection of social contract theory.

• Nevertheless, the bonds of corporate political existence can be dissolved if separate identities arise—in effect, if a new people with its separate identity comes into existence.

• But, importantly, those bonds are dissolved only to establish a new and separate corporate political identity. Not to regress to some fictitious individualist “natural” state of existence. No, as a social being, Man must exist in an organized social form, which will take shape depending on the circumstances in which a particular “people” exists.

• All of this is in accordance with Laws—the laws of human nature and the laws of the God who created human nature. None of this is, therefore, arbitrary or dependent simply on human will. These are truths of existence that are “self evident”, capable of being recognized and understood by all.

• Governments are established in order to secure the corporate well being of members of each particular political society, and thus are established on certain “principles”. The ends which government seeks to secure for those members are organized under three headings: Life, Liberty and the pursuit of Happiness (Jefferson deleted Locke’s reference to Property). Life and Liberty we may understand, but what of Happiness?

• For the Founders, “happiness” had a very specific meaning that is rarely understood properly today. Their understanding of the term goes back to the Greek concept of eudaimonia. Happiness is a state of being that is based in morality, virtue, and utility. Jefferson himself. Thus, a key function of government is to inculcate virtue among the citizenry.

The Declaration embodies the foundational political philosophy of our constitutional order. The Constitution itself establishes the institutions by which the Founders hoped to achieve the goals of any true and legitimate political order. How far Americans have come from the understanding of human nature that formed the background to the Constitution! The Declaration frames, in fact, what can truly be called a “civic theology” for the new nation. What we see in our current cultural mess is the result of the loss of faith in that civic theology. Instead, our new civic theology is a radical skepticism of both Right and Left—the Uniparty. A form of libertarianism for all. This is why Arkes argues that Originalism—an emersion in the bare text of the Constitution—is an inadequate instrument to recover the vision of the Fathers. The publisher’s summary from the Amazon site expresses it well:

Hadley Arkes argues that “originalism” alone is an inadequate answer to judicial activism. Untethered from “mere Natural Law”—the moral principles knowable by all—our legal and constitutional system is doomed to incoherence.

The framers of the Constitution regarded the “self-evident” truths of the Natural Law as foundational. And yet in our own time, both liberals and conservatives insist that we must interpret the Constitution while ignoring its foundation.

Making the case anew for Natural Law, Arkes finds it not in theories hovering in the clouds or in benign platitudes (“be generous,” “be selfless”). He draws us back, rather, to the ground of Natural Law as the American Founders understood it, the anchoring truths of common sense—truths grasped at once by the ordinary man, ...

When liberals discovered hitherto unknown rights in the “emanations” and “penumbras” of a “living constitution,” conservatives responded with an “originalism” that refuses to venture beyond the bare text. But in framing that text, the Founders appealed to moral principles that were there before the Constitution and would be there even if there were no Constitution. An originalism that is detached from those anchoring principles has strayed far from the original meaning of the Constitution. It is powerless, moreover, to resist the imposition of a perverse moral vision on our institutions and our lives.

Turning back to Shakely’s review, these same ideas are also well expressed, with an emphasis on the conflation of Right and Left under one ideological construct that determinedly refuses to take human nature into account:

Michael M. Uhlmann praises Arkes in his foreword for showing “how comfortably the language of law and morals intersected in an earlier era” and why this must be so, for “the positive law in each instance presupposes a certain kind of moral logic.” Arkes, Uhlmann writes, reveals “the nature of positive-law reasoning before Oliver Wendell Holmes, Jr.”—the U.S. Supreme Court Justice who infamously declared, “if my fellow citizens want to go to Hell I will help them. It’s my job”—and before theorists like H.L.A. Hart and Arthur Allen Leff came to dominate mainstream legal thought.

American law and politics, as much as the culture they shape, are no longer generative, because we have come to accept a false binary of morally unbound left-positivism on the one hand and morally indifferent right-positivism on the other. Arkes points out that each are, in practice, little more than factions within a single ideological uniparty. These factions fail to nurture the roots of political order because each are rooted, in different ways, in Melian-style majoritarian assumptions, according to which the “strong do what they can and the weak suffer what they must.” 

Natural rights and natural law thus find themselves scorned by left and right alike, which settle into agreement with Leff’s conclusion that “there cannot be any normative system ultimately based on anything except human will.” Arkes, by contrast, shows why the natural law and the classical legal tradition make possible a constitutional order, one based on substantive rather than merely procedural ends and universal moral truths pertaining to all human persons in every era. A classical jurisprudence will “be simply anchored in the laws of reason,” starting with the conscience’s innate apprehension of the first principle of practical reason, to do good and avoid evil, and following by deduction to provide the rational super-structure for political order.

Arkes cites Bostock as an inspiration for Mere Natural Law, writing of his surprise that “what was missing was any recognition that this decision struck at the very meaning of ‘the human person’ as we are constituted by nature as males and females.” In Bostock, right-positivists and left-positivists alike collaborated to enshrine a morally substantive, albeit fundamentally disordered, view of the human person into law. The Bostock majority’s refusal to acknowledge the fundamental reality of human persons as male and female neatly captures the positivist delusion that sheer human will can remake reality by unmaking nature.

What Shakely captures so well is that the radical skepticism of a Leff is, in fact, far from neutral or tolerant. It can equally easily be used—as we see in Leff’s resolution of any normative system to sheer “human will”—to justify the very types of intolerant repression we see increasing across our land today. If you follow the link to the Wikipedia article on Leff you will see that he very explicitly denies any moral norms whatsoever. As I’m fond of repeating, any pure philosophical position will ultimately be worked out to its full logical conclusions. That’s bad enough. But worse is to come, because then those ideas get put into practice.

The advantange of reductio ad absurdam argumentation is that it very quickly focuses attention on fundamental issues. We see where radical skepticism, radical rejection of “truth” as such, leads—no matter that it’s fundamentally self contradictory. For anyone who’s unhappy with the way things appear to be heading, the solution is to reject—root and branch—the ideas that have led to these developments. But don’t stop there. Just as Originalism is not enough, neither is mere Rejectionism. The real solution is a thoughtful and prayerful return to contemplation of the truths that give life and meaning to human existence. Without that, there is no stopping the slide into oblivion.