Arguing Natural Law
It would be absurd to try to respond here to the larger claims Hadley Arkes makes in his "Natural Law Manifesto" (Fall 2011). I therefore limit myself to brief comments on three of his arguments. First, Arkes is right that disagreement is no proof of anything. But saying so overlooks the fact that natural law is supposed to consist of truths so evident that reasonable men cannot disagree about them. Second, acknowledging that it is wrong to hold a person responsible for what he had no power to affect requires no commitment to natural law—the argument is simply tautological. To hold someone responsible for something is to hold that he caused it, but if so, he must have had the power to affect it. Third, Arkes's discussion of the 14th Amendment raises a very difficult question: its contemporaries believed mix-raced marriage to be contrary to nature. On the basis of what definition of nature is Arkes confident they were mistaken?
The University of Alabama
As eloquent and compelling as I find Professor Arkes's "Natural Law Manifesto," it leaves me with some nagging questions. Suppose that in 1973, rather than Roe v. Wade, a different abortion case had come before the Supreme Court. And suppose that case had involved a state legislature's elimination of one or more of its previous restrictions on abortion, which some resourceful plaintiff had contrived a way to test in the federal courts. Would natural law have required the Justices to restore the deleted restrictions? Would natural law have required the Justices to supersede the patchwork of state-by-state legislative abortion regulations, with a nationwide judicially-imposed ban? And on a different topic, in the infamous Dred Scott case: did the natural law call for the Justices in 1857 to nullify the Missouri Slave Code under which the servitude of Dred Scott was asserted?
If Arkes's answer to one or more of these questions is yes, then I would like to ask how he would reconcile such ruling(s) with the natural law principle, explicit in the Declaration of Independence and implicit in the U.S. Constitution, that governments derive their just powers from the consent of the governed.
Hadley Arkes replies:
I want to thank Messrs. Hocutt and Rutledge for their letters, which gives us the occasion to remind ourselves of critical points about natural law that have often fled the memory even of the tutored. As a recovering professor of philosophy, Mr. Hocutt probably recalls Aquinas's admonition that a self-evident truth is true for all but not known to all: "Thus, it is true for all that the three angles of a triangle are together equal to two right angles, although it is not known to all." A self-evident truth is not one evident to every self happening down the street. What was really meant here, by the founders and others, were truths that had to be grasped per se nota, in themselves. As Alexander Hamilton put it, a self-evident truth "which, antecedent to all reflection or combination, commands the assent of the mind." Of this nature were some of the axioms of moral judgment: the language of praise and blame would be nonsense in the world of "determinism" with the events governed by the laws of nature. We don't condemn rocks for falling or declare it "right" that the earth revolves about the sun. We don't need Kant to remind us that moral judgments hold only in the domain of "freedom," where people have some choice in the things they do or hold back from doing. Hence the proposition that James Wilson (quoting Thomas Reid) pronounced a first principle of moral judgment: that "what is done from unavoidable necessity...cannot be the object either of blame or of moral approbation."
From this axiom we can draw, as I pointed out, many implications in our law, none of them trivial or tautological. When I recast the proposition and say, "we don't hold people responsible and blameworthy for acts they were powerless to affect," Mr. Hocutt simply does the replacement and says, "powerless to cause." Of course. Where is the tautology?
Surely it cannot come as a surprise to Mr. Hocutt that people who have absorbed the law of contradiction and other axioms of reason may still fail to see the implications of their own principles. Or that they fall into serious disputes about the facts and principles that bear on the argument. It is quite arguable in this vein that the framers of the 14th Amendment did not understand the implications of their own principles when they insisted that nothing in that amendment would be at odds with the laws that barred marriage across racial lines. On the other hand, Mr. Hocutt may want to argue that there was no inconsistency, that there may be some kind of argument in prudence, or perhaps even a racial principle, that could make it justified to bar marriage across racial lines. Well, it is quite possible to have that argument. And the only way of having the "argument"—the only thing that makes it an argument—is that there are standards of reason to which we can appeal to judge the soundness, the truth of falsity, of these reasons.
I trust that it would not be jarring to Mr. Hocutt that the scheme of natural law can brook this possibility of reasoned disagreement while holding, at the same time, that there are things we can indeed expect people "naturally" to know. I'd invite my correspondent to imagine three British sailors coming on shore of an island in the South Seas in the 18th century, encountering natives who had never seen Europeans. We may know nothing of those natives, but could we assume that they could recognize that there were "three" strange persons there rather than two or one? Could we assume, as Kant would, that they would grasp the notion of "number"? If one of the sailors fires a pistol and downs one of the natives, do we think that the natives would impute to him the active powers to cause his own acts to happen? And would we be astonished if they responded with an anger directed at the one they saw as having caused the act to happen? To recognize these things is to begin to recognize the vast range of things we could expect ordinary folk to understand if they are to be both the subjects and objects of the law. But to collect these things is simply to fill in again an account of that creature, as Aristotle says, whose nature fits him distinctly for political life, the life marked by the presence of law.
Mr. Rutledge has three questions. In response to the first, it is not the business of the courts to restore statutes—or to repeal them. If Roe v. Wade were overturned, the statutes remaining on the books to protect unborn children would come back into effect because the courts themselves could not repeal them. But there is no need to amend statutes for the courts to hold, in different cases, that the protections of the law have been withdrawn from a class of human beings for reasons quite arbitrary. If a legislature determined that human lives were not protected until the age of five, the courts would not require any novel modes of reasoning to ask what just differences separated the human being at five from the human at four years and 364 days. The judges would of course ask: what differences here could bear the moral significance of explaining why a whole class of human beings should be removed, in a stroke, from the class of rights-bearing beings, and withdrawn from the protections of the law? Nothing deeper, nothing inscrutable or novel, would be posed then if the judges began to ask why the protections of the law are being removed from those small beings in the womb who have never been less than human at any of their living moments.
On the matter of Dred Scott: Justice Curtis recalled, in his dissenting opinion, the holdings of judges in the border states, insisting that where the positive law was silent, the natural law kicked in, and the natural law rejected slavery. But in this case the Court could have pointed out that the positive law had been clear—that Congress had barred slavery from the territories. That is, after all, the positive law that the Court struck down in Dred Scott. And yet, that is not to say that the natural law could not accommodate the evil of slavery as a prudential matter. That was Lincoln's understanding. The commitment to return fugitive slaves, he said, was "nominated in the bond," along with other protections cast about slavery. They were all part of the original prudential settlement that gave us the Union in the first place—the Union that sought to put slavery "in the course of ultimate extinction." A judge surely had to know that, without that accommodation in the positive law, there would have been no Constitution and no federal "judges" to pronounce judgments.
A judge could have recognized then that it was consistent with the tradition of natural law for statesmen to make a prudential accommodation with certain evils for the sake of compressing them. As the old line had it, slavery was so wrong that it could be sustained only by positive law. The Fugitive Slave Clause referred to persons "held to Service or Labour in one State, under the Laws thereof"—i.e., held only under the positive law. But that meant that a people, enfranchised to govern themselves, could recognize some limits on what they were free, as a political people, to will. They could not remove the protections cast around slavery. As Mr. Rutledge notes, the Declaration invoked the authority of the people to exercise their "just powers." It was never claimed that anything willed under the "consent of the governed" was by definition "just." Those moral beings who claimed the authority to govern themselves would also have to recognize, as Lincoln said, that they could not coherently claim a "right to do wrong." They might recognize then that nothing in their claim to rule themselves would be impaired, or diminished, when they recognized the things they had no right to will, even in their name as a self-governing people. For Lincoln it all ran back to "all men are created equal," and that, as he reminded us, came before the Constitution. In short, there is no low door under the wall by which Mr. Rutledge or others can find refuge and serenity in a Constitution happily detached from that moral reasoning that ever comes along with the natural law.
The courts are but one of the institutions brought forth to remind people of the things that majorities might rightly be constrained from doing. But Lincoln taught us, in ways forgotten now by lawyers, of the way in which the judges too may be subject to restraint and check by those officers of the law who bear a political responsibility.
* * *
Right-Wing Judicial Activism?
Richard Epstein's review of David Bernstein's Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform ("A New Birth of Economic Freedom," Fall 2011) demonstrates that even conservatives who ought to know better can succumb to the temptation of believing their most deeply felt policy preferences must, somehow, rise to the level of constitutional imperative, even if they are unable to point to actual text in the Constitution supporting their position. Lochner v. New York is bad law. It is true that progressives hate Lochner, because it checked, however temporarily, the expansion of the regulatory state. But even a broken progressive is right twice a day, and in this case progressives are right for the wrong reason. The Court was wrong not because it checked the regulatory state, but because the decision rests on sheer judicial willfulness. Indeed, the reasoning in Lochner is the polar opposite of conservative constitutional reasoning, by which I mean reasoning based on the actual text, history, and structure of the Constitution and not judges' policy preferences.
The Constitution creates a federal government of limited and enumerated powers. In contrast, the states have plenary power in every area not delegated to the federal government or prohibited to them by the Constitution. Thus, although the federal government may enact only those laws that are permitted by the Constitution, the states may enact any law unless it is prohibited by the Constitution. No one disputes, for example, that states have plenary power to enact a broad range of economic regulations.
Therefore, in an economic regulation case like Lochner, the only issue is whether the particular law runs afoul of some prohibition in the Constitution. The Court struck down the New York maximum hour law at issue in that case on the ground that it violated the "right and liberty of the individual to contract" protected by the Constitution. The only problem is that nothing in the text of the Constitution speaks to (far less guarantees) a generalized "right to contract." So the Court did what courts usually do when they believe the text of the Constitution is deficient. They make up for the Constitution's infirmity by declaring that their preferred policy is subsumed within the concept of "due process" guaranteed by the 14th Amendment.
On its face the Due Process Clause is nothing but a guarantee of procedural fairness. The government cannot deprive a person of life, liberty, or property unless it gives him notice and a fair hearing before an impartial tribunal. The clause simply does not address the issue of the proper grounds upon which a state may decide to deprive someone of their liberty (i.e., the "substance" of the law being enforced). Nevertheless, beginning with Dred Scott, running through Lochner, and picking up speed later in the 20th century with cases like Griswold v. Connecticut (the infamous "emanations from penumbras" case) and culminating in Roe v. Wade, the Court has used the internally incoherent concept of "substantive due process" to wreak havoc on our constitutional order.
Lochner has this in common with all substantive due process cases: one can read it over and over again and never find a limiting constitutional principle. The court held that the New York legislature was being unduly meddlesome when it limited bakers to ten hours a day, but in the same opinion the court noted that a Utah statute limiting miners to eight hours a day was perfectly acceptable. From this we can discern that the line between unconstitutional "unduly meddlesome" and constitutional "acceptably meddlesome" rests somewhere between ten hours for bakers and eight hours for miners. This is not "law." The essence of conservative constitutional jurisprudence is that where the Constitution does not speak, judges must also remain silent and defer to the democratic process (even if—no, especially if—the judge believes the democratic process has produced a bad result).
I take it that Epstein believes Lochner is good law even though other substantive due process cases such as Roe v. Wade are bad law. But why is subverting the Constitution in the name of economic freedom more praiseworthy than subverting the Constitution in the name of sexual freedom? Why should unelected, life tenured, unaccountable judges get to impose their policy preferences on the rest of us with respect to the former and not the latter? Epstein does not say.
Barry K. Arrington
Richard A. Epstein replies:
Barry Arrington's criticism of my review of David Bernstein's Rehabilitating Lochner makes the powerful point that any clause that reads "no person shall...be deprived of life, liberty or property, without due process of law" seems like an odd vehicle to use for securing substantive rights, given its explicit reference to process only. But the actual historical account is more complex than Arrington acknowledges.
The missing piece in the puzzle, which I could not discuss in the review, was the incorrect reading that the Supreme Court gave to the 14th Amendment's Privileges or Immunities Clause in the Slaughterhouse cases in 1872. That clause does have inescapable substantive bite when it says "No state shall make or enforce any law which shall abridge the privileges or immunities of the Citizens of the United States." The Supreme Court read it to cover only rights that individuals had as federal citizens, when the correct reading is that all United States citizens are protected against any abuse of their individual rights done by state government, so long as they are covered by the generous phrase "privileges or immunities," which did include the right to enter into honest agreements.
Properly read, the Privileges or Immunities Clause places a huge limitation on what the states can do to citizens, even if it does not extend to all persons, both citizens and aliens, who are protected by the Due Process Clause. Once these privileges and immunities are secured, the state may retain huge powers to initiate legislation, but all that legislation (and its enforcement) remains subject to a judicial override on constitutional grounds.
At this point, the police power enters the discussion in a sensible way—as it does with every other substantive constitutional guarantee. These individual rights are subject to limitation when the state passes legislation that is reasonably adapted to protecting the "health, safety, general welfare, and morals," of the public at large. Yet that police power does not allow the state to engage in anti-competitive activity: in Lochner, the insulation of unions against nonunion competition. There is no "subversion" here of the Constitution in striking down New York's maximum labor law. Recall that the subject of Ernst Freund's great 1904 treatise was "The police power, public policy and constitutional rights," written the year before Lochner. Lochner built on a long tradition.
Unfortunately, Slaughterhouse snarled up American constitutional law. Its dissenters took refuge in the Due Process Clause to undo its manifest errors. As usual, however, two wrongs do not make a right. Once due process was given a substantive dimension, the relevant constitutional protection covered both citizens and aliens, contrary to the original structure of the Privilege or Immunities Clause which reserved occupational liberties to citizens only.
Getting Lochner right, moreover, does not create some deep contradiction with Roe v. Wade, which is wrongly decided even as Lochner is correctly decided. The key difference is found in the police power. Whatever one thinks of Roe, the anti-abortion law has no anti-competitive component, but is surely a matter of health and safety for the unborn fetus, which has always properly been a state concern.
Nor will it do for Mr. Arrington to trot out yet once again the query: "Why should unelected, life tenured, unaccountable judges get to impose their policy preferences on the rest of us with respect to the former and not the latter?" The incurable problem with this position is that it attacks not just economic liberty, but all of judicial review. After all, the federal Constitution imposes limitations on how states try criminal and civil cases. The same can be said with constitutional protections for speech and property and contract, which necessarily override the policy preferences of a democratic majority.
What is needed, therefore, is a more fine-grained theory to demarcate the respective zones of the legislature and the courts. One partial approximation holds that only the legislature can authorize condemnation of particular real estate, but that it cannot do so in ways that avoid either the public use or just compensation requirements of the Fifth Amendment.
Following these steps does not, moreover, yield the high ground to the progressives because the entire substantive architecture of the Constitution is steeped in a concern with guarantees for individual rights and structural constraints. These have to be faithfully enforced in order to prevent the rise of the administrative state (for which there is no textual warrant) or the massive restriction of substantive rights. This task is hard slogging, but some disembodied notion of judicial restraint does not allow judges and theorists to evade the hard substantive questions of what particular clauses mean and why.
Progressives have to be proved wrong (when they are wrong) clause by clause and case by case. That task is not impossible. As I argued in my book Takings: Private Property and the Power of Eminent Domain (1985), courts have recourse to a wide variety of techniques to isolate those actions that are intended to advance the interest of Madison's factions from those which seek to generate common improvements shared by all. It takes no great insight to realize that statutes of limitation and recording acts do modify rights of property and contract, but do so only in a way that improves the overall social welfare, here defined as the position of all persons benefited and burdened by the rule. The same cannot be said of a zoning law that stops one person from building so his neighbor can secure a monopoly position.
The difficulty that besets Arrington is that he succumbs to a deep form of political relativism and cognitive skepticism in order to justify his excessive devotion to democratic institutions that in the end form no part of our constitutional plan or heritage.
* * *
Blame the Professors
Reading James Stoner's thoughts on "Redeeming Higher Education" (Fall 2011), I must ask: would you recommend a doctor who keeps badmouthing his patients for failing to take their medicines? A similar question might be applied to professors. For my own part, I'm weary of hearing students being blamed for putting in too little work, or lacking a capacity for serious writing. It's the job of faculties to make their students want to learn what's being taught. My onetime Cornell colleague, Allan Bloom, got engineers excited about Plato. Academics who can't or won't do that should find another occupation.
James R. Stoner, Jr., replies:
I agree with Professor Hacker about the achievement of professors like Allan Bloom, and thought that would be clear from my essay. Doctors learned long ago to sweeten children's medicine. My complaint is with those who promote the sweeteners without taking seriously the kind of inquiry that truly heals.
* * *
In his review of Erwin Chemerinsky's The Conservative Assault on the Constitution ("Writ of Error," Summer 2011), John Eastman quoted from a part of Justice Scalia's opinion in Harmelin v. Michigan that did not command a majority of the Court. The full passage should have read that Chemerinsky's
argument against lengthy sentences for third-strike offenders did find precedent in a single 1983 case, Solem v. Helm, which overruled the long-standing rule, but was repudiated by the Court eight years later in very strong terms: "Solem was simply wrong. The Eighth Amendment contains no proportionality guarantee," wrote Justice Scalia [instead of "the Court held"] in Harmelin v. Michigan (1991) a dozen years before Chemerinsky argued Andrade's case.
Nevertheless, because Justice Kennedy, whose opinion concurring in the judgment provided the remaining votes for the judgment, added that the Eighth Amendment "forbids only extreme sentences that are ‘grossly disproportionate' to the crime," a position that the dissent claimed "eviscerated" Solem, the conclusion remains correct: "This is not exactly ‘very strong ground' for Chemerinsky's position."