Magazine article First Things; A Monthly Journal of Religion and Public Life

The Lawful Truth

Magazine article First Things; A Monthly Journal of Religion and Public Life

The Lawful Truth

Article excerpt

The Lawful Truth Constitutional Illusions and Anchoring Truths: The Touchstone of the Natural Law BY HADLEY ARKES CAMBRIDGE, z8o PAGES, $2,5.99

Most readers of this review will need no introduction to Hadley Arkes, who once wrote a book called First Things and has long been a contributor to this magazine and a member of its editorial board. From his perch at Amherst College and, regularly, in the nation's capital as a philosophic gadfly, Arkes has been one of our country's most persistent and effective advocates of the right to life of the unborn child. He has fought ably, as well, in the ranks of those defending the institution of marriage. In both cases he has left his mark on the laws of the land, among them the Born-Alive Infants Protection Act and the Defense of Marriage Act. His colleagues in the study of jurisprudence know him as a formidable interlocutor and a generous spirit. I know it myself: Nearly fifteen years ago I severely criticized his book Beyond the Constitution in the pages of my own first book, and his response was to befriend me to carry on the argument, which we have done ever since. Years later there is much that remains in dispute between us, but we are both convinced that the argument is worth having.

In Constitutional Illusions and Anchoring Truths, Arkes returns to themes that animated Beyond the Constitution and his later The Return of George Sutherland: namely, that to live under a constitutional government is, unavoidably, to encounter deeper principles, to grapple with the logic of moral reasoning itself, and to confront the need for justification. Standing with Lincoln, Arkes reminds us that laws and policies, courts and congresses, elections, and even the consent of the governed itself must be rooted in the fundamental reality of our rights and obligations as moral agents or they have no rightful claim on our obethence. The scourge of the relativist and the legal positivist, Arkes demonstrates that the "fashionable doctrines" that deny that "we can know moral truths" are an acid that dissolves the rule of law and eats away the ground of all legitimate power, judicial or political.

Where Arkes and his conservative critics part company (as, for instance, in the debate Robert Bork carried on with him in the March and May 1992 issues of FIRST THINGS) is on the metes and bounds of judicial authority. When Arkes writes, for instance, of "those deep principles of lawfulness that [have] a claim to be respected in all places, or incorporated in the basic law of any country that would claim to be a civilized country under the rule of law," one gets the distinct impression that, for the judge operating according to this understanding, to know the "deep principles" is to act on them and to "incorporate" them in the "basic law" of our Constitution, even if there is no particular reason to believe that the framers and the ratifiers intended any of the language of the Constitution to incorporate them.

Arkes writes of the famous 1810 case of Fletcher v. Peck, for example, that "even if Georgia had not come under the Constitution and the restrictions of the Contracts Clause, the action of the legislature would still have been wrong." Wrong? Yes, to be sure. But it is hard to avoid the conclusion, from the context, that a judge following Arkesian advice would say so, with (presumed) authority - would, that is, invalidate a law as "unconstitutional" for violation of an obligation that cannot be found in the Constitution but can be found in a general category of principles of "lawfulness."

After a bit of this, one begins to feel like Mr. Salter, the foreign editor of The Daily Beast in Evelyn Waugh's Scoop, who knew that in conversation with Lord Copper, his publisher, there were two safe answers to every one of his employer's utterances: "Definitely, Lord Copper," when he was right, and "Up to a point, Lord Copper," when he was wrong.

So, to take another instance, Arkes writes that if, "under a constitutional government, the judges would have some leeway to test legislation against the principles of the Constitution, it is quite arguable that there must be implicit, in that vocation, the possibility of judging the Tightness, the arbitrariness, or the justification of what is enacted into law. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.