178 Hadley Arkes’ “First Things”

One of America’s fines thinkers, Hadley Arkes (a professor at Amherst College), has for decades espoused a natural law ethic and effectively worked in the political sphere for legislation such as the “born alive infant protection” and “defense of marriage” acts.  His thought was cogently set forth in FirstThings:  An Inquiry into the First Principles of Morals and Justice (Princeton: Princeton University Press, c. 1986).  He begins by stressing that Justice James Wilson, in 1793, recognized that the Supreme Court of the new United States could not cite earlier decisions. Thus it would be necessary to invoke ‘”principles of general jurisprudence'” and, furthermore, to align with the common sense philosophy of Thomas Reid in acknowledging “the validity of the laws of reason and the grounds of our moral understanding” (p. ix).

Arkes hopes, in his writing, “to restore that tradition of understanding in which Reid held such an evident, important place. That tradition of moral reflection took seriously the notion of ‘first principles’ in morals and law, as well as in physics and mathematics, because it recognized that our knowledge, in all its branches, found its common philosophic origin in the laws of reason or the ‘principles of understanding'” (p. x). Thus the first of the book’s two sections is devoted to “the groundwork of moral judgment,” which entails challenging the skepticism and moral relativism so evident today. Fortunately, Arkes says, his challenge accords with the convictions of the men who founded this nation, who often invoked John Locke, the philosopher who “had no doubt that ‘morality [stood] amongst the sciences capable of demonstration:  wherein I doubt not but from self-evident propositions by necessary consequences, as incontestable as those in mathematics'” (p. 5). There are axioms—first principles—”truths in the domain of morals and law that we not only know, but that cannot be otherwise. This book is an attempt to take up that mandate by ‘reminding’ us of the things that philosophers and statesmen once knew” (p. 6).

Whereas Aristotle and the ancients held that ethics is a rational discipline, moderns such as Thomas Hobbes relied on subjective and biological desires for guidance. Thomas Reid, like Aristotle, said:  ‘”Feeling, or sensation, seems to be the lowest degree of animation we can conceive. . . . We commonly distinguish feeling from thinkin’g” (p. 22) because we rightly grasp the nature of human nature. Arkes shows the significance of this distinction in his discussion of the 1858 Lincoln-Douglas debates. Stephen A. Douglas, championing “popular sovereignty,” was content to abide by whatever a majority of people desired. Thus laws are purely conventional, rooted in whatever a people momentarily desires. He was, in today’s lingo, a “pro-choice” advocate of “cultural relativism.” Abraham Lincoln, however, insisted there was a higher law, a moral law, an eternally and universally true standard, that decreed slavery intrinsically wrong. He articulated a natural law ethic. With Aristotle, Lincoln recognized, Arkes says, that “Polity arises from the capacity of human beings for moral judgment. The mark of a polity is the presence of law, and law (as we can see now) arises directly from the logic of morals. …. We have law only because we have morals—only because it is possible to speak of things that are right and wrong” (p. 25).

There are in fact “necessary truths” that transcend personal “feelings,” and we cannot live without them.  “It would be possible,” Arkes says, in a persuasive paragraph, “for us to reject the existence of morals if we were indeed prepared then to live out the rest of our lives without the use of moral terms and the functions they serve.  We would have to be willing to live without complaining or showing outrage, from the smallest villainies to the most massive evils—from being shortchanged at the supermarket, to encountering the horrors of genocide. We would have to cease condemning injustices, complaining about faults; we would have to stop despising what is hateful and loving what is admirable. In short, we would have to live a life barren of those things that give human life its special character, because we would rule out the one thing that is truly distinctive about human beings: our capacity for moral judgment” (p. 74).  

Having established a groundwork for moral judgment, Arkes turns, in the book’s second part, to “cases and applications.” He considers the risky path the nation’s courts have walked by allowing “conscientious objection” to certain laws, specifically conscription. He devotes two chapters to the Vietnam War, providing a valuable historical survey and showing how the American media largely misrepresented the struggle. He notes how critics of the “war and to American intervention had depended critically on the premises of cultural relativism” (p. 261). In fact, “only the intervention of the United States” offered the Vietnamese the “right to be ruled by a government of their own choosing” (p. 269). Abandoning South Vietnam after the hardest battles had been won, and soon witnessing the truth of the “domino theory,” the United States opened the floodgates to Pol Pot’s genocide in Cambodia. America’s involvement in Vietnam, Arkes thought, illustrated our moral “obligation to rescue” those in need. “Those who would save lives with food and medicine in all countries, whose who would protest the extinction of ‘human rights’ in countries other than our own, and those who would press their humanitarian concerns even when they know they would be intervening in the politics of other countries have all acknowledged the most decisive principles that sanctioned the American intervention in Vietnam” (p. 292).

Likewise, though there is a moral justification of welfare, “redistributive justice” is quite problematic. Needy people—paraplegics, for example—are entitled to assistance from the community. Such assistance obviously requires taxing those who work to support those who need rescuing. How the taxes are generated, however, merits the moral scrutiny evoked in the 18th and 19th centuries. J.R. McCulloch, for example, “wrote in 1845, ‘The moment you abandon . . . the cardinal principle of exacting from all individuals the same proportion of the income or their property, you are at sea without rudder or compass, and there is no amount of injustice or folly you may not commit'” (p. 313). Redistributive taxation (the graduated or progressive income tax) is designed, as Marx made clear in his Communist Manifesto, to equalize wealth. That it has been so widely embraced (too often simply as an easy way to generate revenues) without “serious moral challenge” distresses Arkes, for the pieties of “redistributive justice” have “no moral ground of justification, but rather a mean, unredeeming truth: the persistence of spiteful envy” (p. 232). “The world,” he concludes, “could have been spared a large measure of misfortune—and no harmless train of moral blundering—if it had turned away from policies of redistribution in the way that the French finance minister Jacques Turgot turned away from one of the early proposals for a graduated tax on income. With his cultivated judgment, Turgot managed to sense at once that the scheme was as morally doubtful as it was economically ruinous. ‘One ought,’ he said, ‘to execute the author and not the project'” (p. 326).

Turning to “the question of abortion and the discipline of moral reasoning,” Arkes laments the illogic of many recent judicial decrees. Arkes shows how a sentence of Justice Blackmun’s in Roe v. Wade, illustrates that lack of “any rigorous philosophic and moral reasoning which has become typical of the Supreme Court in our own time” (p. 360).  The incoherence of being “pro-choice,” for example, is evident when one realizes that “one could be “pro-choice” on the torture of children only if there were nothing in principle wrong or illegitimate about the torture of innocent people. The point is not grasped so quickly in relation to unborn children because they are not viewed as children, or ‘persons'” (p. 362).  Pro-choice rhetoric regarding the unborn as “potential persons” is likewise misleading, for a “fetus may be a potential doctor, a potential lawyer, or a potential cab driver; but he cannot be considered merely a potential human being, for at no stage of his existence could he have been anything else” (p. 364).

The courts have decided, in recent decades, that what a woman wants is the only relevant question regarding abortion rights. The woman’s desire, not any truth regarding the reality of the unborn child, is sovereign. “With this kind of license,” Arkes reasons, “there would be no obstacle to carrying out abortions, not only past the first trimester, and not only up to the moment of birth: it would become clear very soon that a child who survived an abortion could legitimately be destroyed if the presence of the living child would he a cause of distress for the mother” (p. 370).

* * * * * * * * * * * * * * * * 

In Beyond the Constitution (Princeton: Princeton University Press, c. 1990) Hadley Arkes continues the careful legal and philosophical analyses evident in First Things. The book’s title encapsulates his conviction “that there is a need to move beyond the text of the Constitution, to the principles of moral reasoning that stood antecedent to the Constitution” (p. 245). He endeavors to recover, restate and defend those natural law convictions (what Blackstone called “the law of nature and reason”) that inspired this nation’s Founders, fully aware that “our current lawyers and professors of law find it hard to speak seriously in this vein” (p. 10).  He hopes to expose and refute the sophisticated silliness of the influential philosopher Richard Rorty, who quipped that ‘”nothing interesting can be said about truth.  It is almost literally not worth talking about'” (p. 11). And though Rorty represents the views of the left, influential thinkers on the right, such as Raoul Berger and Robert Bork, have similarly dismissed the relevance of earlier jurists’ concerns for “natural justice.” There is, quite simply, a radical disconnect between any absolute morality and judicial decisions because “morality” has been relegated to personal opinion and the Constitution is regarded as simply an evolving consensus of the people. That position, however, departs from that of the Founders, whose jurisprudence “was built on the connection that was traditionally understood between morals and law.  The Constitution they finally produced, as our second Constitution, could be understood and justified, only in moral terms, only by an appeal to those standards of natural right that existed antecedent to the Constitution. My argument in this book is that the Constitution produced by the Founders cannot be understood if it is detached from those moral premises” (p. 17).

The Founders believed that “judges were not free to shape the law according to their own enthusiasms. They were obliged, rather, to move from the stipulations of the positive law to the guidance of the natural law, or what Blackstone called at different times ‘common reason,’ or ‘the law of nature and reason'” (p. 22). They stood rooted in the tradition shaped by Aristotle and Aquinas, Grotius and Reid. And they shared the judicial reasoning of the Old Testament. For the past century, however, influential legal scholars have promoted the proposition that America’s Founders embraced “the ‘modem’ notion of natural rights put forth by Hobbes” that presumed “that rights were in fact surrendered in entering civil society. But not the least of the difficulties, passed over in this interpretation,” Arkes says, “is that if fails to take seriously the Christianity of the Founders. With men like Wilson and John Jay, the understanding of Christianity pervaded their writings and sustained their convictions about natural rights. The Author of the Universe, the Author of the laws of physics, was also the Author of universal moral laws. Any serious believer in a single, universal God, could of course understand that the God of the Universe would not create a separate moral law for New Jersey and France. These moral laws, then, were immanent in the universe” (p. 64). Importantly: “It was not the existence of government that created these rights; it was the existence of these rights that called forth and justified the existence of the government” (p. 64).

Nor can these natural rights be annulled by any government!  A good government simply protects them.  “Man has,” Supreme Court Justice Wilson said, ‘”a natural right to his property, to his character, to liberty, and to safety’—which is to say, that he has a right to be protected, so far as practicable, from virtually all species of injustice” (p. 65). Life, liberty, and property merit protection. Importantly, the First Amendment to the Constitution is “not itself the source of these rights” (p. 81). Thus the oft-repeated cliche that we enjoy certain rights “under the First Amendment” reflects the influence of legal positivism, not the view of the men who crafted it.

Illustrative of the move to legal positivism is the current “incorporationist” understanding of the Bill of Rights. Before 1925, the Supreme Court routinely held that the Bill of Rights applied only to the federal system, not the states. In Gitlow v. New York, however, “a new doctrine, or at least a new slogan, of jurisprudence would spring, namely, that the Fourteenth Amendment had “incorporated’ or absorbed the full inventory of provisions in the Bill of Rights and made them binding upon the states. Starting in 1947, Justice Hugo Black embraced this position emphatically and made it part of his agenda for the Court” (p. 157). Subsequently “the Court would extend to the states the provisions in the Bill of Rights, read in the most restrictive way” (p. 157). And this, quite simply, explains why the courts have issued many arbitrary decisions regarding abortion, civil rights, the separation of state and church, etc.

* * * * * * * * * * * * * * *

Hadley Arkes begins his Natural Rights and the Right to Choose (Cambridge: Cambridge University Press, c. 2002) with some “searing lines of Justice McLean, in his dissenting opinion in the Dred Scott case:  “You may think that the black man is merely chattel, but ‘He bears the impress of his Maker,and is amenable to the laws of God and man; and he is destined to an endless existence.’ He has, in other words, a soul, which is imperishable” (p. 1).  McLean’s moral absolutism, however, has largely evaporated in the modern world (influenced as it is by the ethical relativism of Nietzsche and Heidegger and their epigones) wherein even the “common man” generally espouses a version of “soft relativism” disguised as non-judgmentalism and tolerance. Consequently, Arkes says, “in the most affable and serene way, many Americans, and especially, members of the political class, have come to talk themselves out of the premises of the American Founders and Lincoln” (p. 7).

Though Lincoln probably never read Aristotle or Aquinas, he espoused a common sense realism and natural law ethic quite similar to theirs and “managed to bring the logic of natural rights to bear on the most vexing issue in our politics” (p. 17). His understandings no longer shape the intellectual life of the nation, especially in elite university circles, where fashionable movements such as deconstruction, postmodernism, radical feminism, and multiculturalism reign. Whatever their labels, however, they are merely new installments of an ancient philosophy: epistemological skepticism and moral relativism.

Such skepticism dramatically stamps the famous “mystery passage” in the 1992 Supreme Court decision. Planned Parenthood v. Casey, wherein the justices declared that “at the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life'” (p. 43). This led, within a decade, a federal judge to explain her overturning a law forbidding partial-birth abortion in New Jersey thusly: “There was, in reality, no child to be born, and no ‘delivery’ of a baby, because ‘a woman seeking an abortion is plainly not seeking to give birth'” (p. 43). Compare these recent dicta of legal positivism with the natural law argument of Alexander Hamilton in Federalist #31:  ‘”In disquisitions of every kind there are certain primary truths, or first principles, upon which all subsequent reasonings must depend.  These contain an internal evidence which, antecedent to all reflection or combination, command the assent of the mind. . . . Of this nature are the maxims in geometry that the whole is greater than its parts;…. Of the same nature are these other maxims in ethics and polities'” that provide the foundation for a good society (p. 40).

Hamilton’s certainties have disappeared in the nihilistic milieu of our postmodern times, wherein “the new jurisprudence reaches its completion by detaching itself from every premise necessary to the notion of lawfulness. It rejects the logic of natural rights; it denies that any of us has rights of intrinsic dignity because it denies that there is any such intrinsic dignity attaching to any human being, as the subject and object of the law” (p. 146). The judges who have promulgated this new “antijural jurisprudence” have made their position clear in decisions regarding “partial birth abortion.” Knowing they could not demonstrate a significant difference between “late term” and earlier abortions, they have determined that legislators “may not erect a barrier, indecorously firm, against infanticide if that legal proscription would have the effect of inhibiting abortions anywhere else in the stages of pregnancy” (p. 116). Granted, “they have not quite endorsed it in a full-throated way or proclaimed infanticide as a positive good. Yet they have made it clear, in a chilling way, that they will not be put off, or distracted, from the defense of abortion, even in the cases where abortion merges with outright infanticide” (p. 125).

This openness to infanticide was evident to Arkes when he was closely involved drafting and promoting the “Bom-Alive Infants Protection Act.” Abortion rights organizations opposed the legislation, but remained largely silent because friendly politicians warned them that the people overwhelmingly supported it. But NAROL and Planned Parenthood—and supportive politicians—share Professor Peter Singer’s conviction “that human beings only become ‘persons,’ and acquire a right to life, sometime well after birth'” (p. 155). In response. Professor Robert “George crystallized the matter: ‘The legitimization of infanticide constitutes a grave threat to the principle of human equality at the heart of American civil rights ideals'” (p. 155). Both Arkes and George know that the struggle over abortion is in fact “a more complicated argument over natural rights” (p. 155).

That American judges are on the cusp of implementing infanticide leads Arkes to devote a chapter to some “prudent warnings and imprudent reactions: ‘judicial usurpation’ and the unraveling of rights.” In their absolutist defense of abortion rights, federal judges have repudiated the “natural rights” that were basic to the republic designed by the Founders and defended by Abraham Lincoln.  Even William Rehnquist, a notably “conservative” chief justice, justified his views in terms of legal positivism, not natural rights—siding with Nietzsche rather than Lincoln. In response.  Harry Jaffa said; ‘”To say that safeguards for individual liberty do not have any intrinsic worth is to say that individual liberty does not have any intrinsic worth.  To say that individual liberty does not have any intrinsic worth is to say that the individual human person does not have any intrinsic worth. This is to deny that we are endowed with rights by our Creator.  To deny that is in effect to deny that there is a Creator. This is atheism and nihilism no less than moral relativism'” (p. 176).

A new generation of judges, laments Arkes, have been “fed on the notion that judges, in modem America, rule” (p. 207). Rendering impotent the Constitution, with its clear separation of powers, powerful judges have violated their rightful role as interpreters of the law. “As Alexander Hamilton had remarked in the Federalist #78, the Court had no control of the sword or of the purse—it had ‘neither force nor will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.’ The power of the Court would ultimately depend, then, on the force of its reasoned argument.

With that sense of the matter, Lincoln insisted that other officers of the government could not be obliged to accept any new ‘law’ created by the Court unless the, too, were persuaded of its rightness” (p. 219). To deny that, Lincoln believed, would mean that an unelected, “eminent tribunal” had seized control of the republic. And that’s what’s happened during the past century! Judges now rule.