Hadley Arkes’ latest book, Mere Natural Law: Originalism and the Anchoring Truths of the Constitution, contains much common sense about natural law, but much less insight into either originalism or contemporary Supreme Court jurisprudence. In short, his thesis is that originalist interpretation needs to be supplemented by the truths of natural law to avoid a slide into relativism. But originalism does not need Arkes’ infusion of natural law to beat the charge of relativism. The judicial doctrine arising from originalism reflects the appropriate place to include moral reasoning in our political system.
Sound Ideas on Natural Law
Arkes, a distinguished emeritus professor of political theory at Amherst, provides a great service in dispelling some myths about natural law. For instance, he argues that disagreement about its contours does not show that it is indeterminate. He is absolutely right: People disagree about many things, like who caused the accident down the street without thinking that the cause is indeterminate. Originalists make a similar point in response to the claim that language is indeterminate. The proposition that disagreement does not imply indeterminacy should be written as an essential truth on the wall of any university. It does not necessarily follow, of course, that all the truths of natural law are as easy for people to discern as the meaning of written law, the latter being based on empirical facts of language and history.
Arkes is also right that it is perfectly possible to subscribe to conclusions of natural law outside of a religious framework. Philosophers may argue against abortion, for instance, not on the basis of revelation but on “the principle that there are no reasons for removing the child in the womb from the circle of human beings that would not apply to many people walking around outside the womb.” For those who have grave moral doubts about abortion that are nevertheless untethered to religious belief, Arkes provides clarifying support.
But Arkes is much less trenchant when it comes to originalism. He believes that simply following the original meaning of the Constitution without inquiry into natural law truths is wrong. Such decisions would be “detached from the moral convictions and sentiments of judges.” The natural law, in his view, provides the Constitution with the necessary moral foundation. But Arkes never addresses, let alone rebuts, the moral arguments that contemporary originalists have given for following original meaning alone, without judges’ directly considering moral sentiments in particular cases.
Some theorists, like Randy Barnett, think that exclusively following the original meaning is justified, because overall the Constitution creates an appropriate framework for liberty, and adhering to original meaning protects that framework. Others, like Mike Rappaport and myself, believe that the supermajoritarian process of constitutional creation produces a text that provides the best framework for beneficent government. Most recently, Joel Alicea working within the natural law tradition has defended original meaning because natural law recognizes, under appropriate circumstances, the authority of popular sovereignty, and the Constitution represented an appropriate act of popular sovereignty. All these arguments show that the obligation to exclusively follow the original meaning of the Constitution has been rooted in claims of objective morality.
Eschewing natural law or other forms of moral conviction as independent bases of judicial decision does not mean that moral convictions have no place in our constitutional polity. Sensibly, our framework for government allows people persistently to consult political morality, including natural law, to make policy decisions and to elect their leaders. Just as Lincoln correctly argued that people should press Congress to vote against the spread of slavery into federal territories, the people today could press the appropriate legislative authorities to curtail abortion. Moreover, just as the people exercising their popular authority amended the Constitution to make slavery illegal throughout the United States, they could amend it to restrict abortion in all the states.
Arkes suggests that the Dobbs Court should have seized a “natural law moment” and helped the movement to end abortion by declaring that the practice is a taking of human life—the teaching Arkes derives from natural law. But the Supreme Court has no authority to make a declaration on natural law unless it is necessary to interpret the text of the Constitution. Arkes does not show that such a declaration was necessary to decide the case before it. For instance, he does not argue that the meaning of “person” under the Fourteenth Amendment was understood to include fetuses, making abortion potentially a violation of the Equal Protect Clause. Once the justices correctly declared that the Constitution contains no right to abortion, they fully discharged their judicial duty in the case before them. Even from the point of view of realpolitik, such an unprecedented declaration would have set the anti-abortion cause back by making Dobbs even more controversial, exposing the justices to legitimate attack as judicial freelancers.
Puzzling Thoughts on Religious Liberty
The concern with relativism pervades Arkes’ book. For instance, Arkes is also unhappy with the notion that the Court may grant exemptions from generally applicable law. He does not base this complaint, however, on the plausible argument made by Vincent Phillip Munoz that neutrally applicable laws do not violate the original meaning of the Free Exercise Clause. Rather, he claims that in permitting these exemptions on the basis of sincere beliefs, the Court takes a relativist view toward religion because it would not test the moral truth of the beliefs. Without moral testing, for Arkes, there is no basis to protect religious beliefs more than other secular beliefs which individuals may also sincerely hold, however deeply mistaken. Surprisingly, this view aligns him with some left-liberal critics of religious protection who also see no reason for distinguishing between secular and religious belief as a basis for protecting conscience.
But his approach is impossible to square with the Constitution. The Framers included protection for the free exercise of religion, not for all beliefs and practices. Moreover, the Free Exercise Clause aimed to keep the government out of the business of judging religious beliefs—a process that had led to bloodshed in the hundreds of years of religious wars and inquisitions that proceeded the Constitution. James Iredell, the future Supreme Court justice, made clear at North Carolina’s ratifying convention that the religions protected by the Constitution included Hinduism, even though it was widely regarded at the time as a form of paganism—a belief he did not consider sound.
Extending protections for religious belief does not mean that one accepts that there is no truth test in an ultimate sense. Protecting conscience without inquiry into its truth foundations comes from the conviction that the government, composed of flawed people (indeed, from many religious perspectives, sinful people) cannot be trusted as the judge. Would Arkes advocate for a moral truth test to the constitutional provision mandating no religious test for office?
In any event, it should be noted that Burwell v. Hobby Lobby, the central case that Arkes criticizes for relying on the sincerity of belief, was not even a constitutional case, but based on the Religious Freedom Restoration Act. That act incorporated previous court precedent that protected religious belief and practice on the basis of sincere belief. It would have violated the Justices’ duty in statutory interpretation to be faithful agents of Congress had they not accepted sincere religious belief as a basis for invoking the act.
Another example of Arkes’ failure to provide the clarifying context of a case comes in his praise for Trinity Lutheran Church v. Comer. There, the Court held that a state could not exclude a church from a program for making playgrounds safe. Here Arkes argues that a way was found to protect religion with a “lever for the religious not found in the Constitution.” But the Court certainly thought the lever was in the Constitution. Its decision turned on the proposition that the exclusion violated the Free Exercise Clause because it deprived the institution of a benefit on the basis of its religious identity. Arkes may think that the Court could have reached the result simply on the basis of equality, a natural law principle. But it could not have done so without overturning vast areas of constitutional law. States can and do treat individuals and institutions differently based on a wide variety of considerations, such as their income, location, function, and even identity. It could, for instance, subsidize the fields of baseball clubs and not soccer clubs. What made this discrimination unconstitutionally unequal for the Court was that institutions that could be identified as religious on the basis of their beliefs are specially protected from discrimination by the Free Exercise Clause.
Opportunities for Integrating Originalism and Natural Law
There may be some role for natural law in originalism. But it does not resemble the function Arkes promotes. He understands natural law to provide free standing axioms which may decide cases, but he has not provided evidence that, however much the Founding generation believed in natural law, its jurists incorporated this approach into judicial review. Arkes does refer to Gibbons v. Ogden, where Chief Justice John Marshall demonstrated “propositions that would have been thought to be axioms.” But the axioms in this case are not appeals to natural law, but instead to rules of textual interpretation. In that passage, for instance, Marshall observed that it did not matter that steamboats moved by steam rather than by sail, because the text of the Commerce Clause leaves questions like that to discretion of Congress.
Nevertheless, it is possible that natural law may prove useful within the interstices of originalism. First, natural law might be used to resolve ambiguities of the original meaning in the Constitution. Certainly, the Constitution was written against a background where natural law was familiar to enactors. But there would need to be evidence that the principle mandating the interpretation of ambiguities in light of natural law was one that they deemed applicable.
Second, the original meaning of some provisions of the Constitution might require natural law for their definition. In Tyler v. Hennepin County, a decision rendered just last month, the Supreme Court unanimously held that a state retention of the entire value of a home in forfeiture—going beyond what was necessary to satisfy a person’s tax obligation—was a taking of property in violation of the Fifth Amendment. Minnesota argued that state law permitted it to retain these excess proceeds and therefore it was not a taking. Chief Justice John Roberts summarily rejected the argument, noting that if state law were permitted unlimited discretion to decide what was property, the Taking Clause would become a dead letter. Instead, the Court would define property by looking to “traditional property law principles plus historical practices and this Court’s precedent.” Roberts found some of his key traditions in the Magna Carta, but it might be argued that natural law could help provide a definition as well.
Thus, a fruitful dialogue to be had between natural law and originalism may well have a future. But Mere Natural Law, despite its interesting insights about natural law, does not yet provide a framework for that conversation.