Will Baude's recent article provides new reasons to defend sovereign immunity, and he does so on originalist grounds.
Hadley Arkes, Professor of Political Science at Amherst College, ranks high among America’s most elegant and creative constitutional theorists. His latest work, Constitutional Illusions and Anchoring Truths: The Touchstone of the Natural Law, does not disappoint, taking readers through a reexamination and reconsideration of both well-known and obscure constitutional cases to reach surprising and provocative insights.
The longest and most successful part of the book, for example, considers the landmark prior restraint case Near v. Minnesota, the memorable Pentagon Papers case, and its obscure but (to Arkes) decisive follow-up Snepp v. United States. Professor Arkes’ detailed retelling devastates the conventional view of all three cases. Near, rather than a heroic defense of the First Amendment, becomes a dubious holding protecting unsavory people from something that was not a true prior restraint (ch. 5). The Pentagon Papers case becomes a grave judicial misstep which key Justices recognized would greatly damage national security but which they thought (wrongly) was compelled by Near’s (mythical) enshrinement of an almost-absolute rule against prior restraints (ch. 4). And Snepp becomes the decisive capstone of the three, quietly and inevitably reinstating national security-based prior restraints in the face of the mistaken conventional narrative of Near and Pentagon Papers (ch. 6). This series, which takes up much of the second half of the book, is itself worth the purchase price – and there are other shorter but equally incisive retellings (perhaps the greatest being his assessment of Bob Jones University v. United States (ch. 7), vindicating then-Justice Rehnquist’s lonely and politically incorrect dissent.)
But Professor Arkes has more in mind than just re-interpreting classic cases. He is among the nation’s leading writers on natural law, and his project is to show how natural law rightly and inevitably informs understandings of positive law, especially (though not exclusively) in constitutional adjudication. As he puts it at the outset (p. 2):
The classic commentators understood that the positive law, the law that was “posited,” or written down in statutes, could not exhaust the definition of justice. It could not possibly take account of all of the facts and circumstances that could make a difference for a moral judgment, a judgment on the rightness or wrongness, the justice or injustice, of the situation at hand. … [T]here was a certain confidence that there were things in the domain of moral judgment that were accessible to our reason. Propositions about right and wrong were not merely matters of the most personal and subjective taste. Certain things in this domain were indeed true, which is to say, objectively true, true for others as well as ourselves. And at the very least, a lifetime of reflection on the conditions of justice or the principles of right was not thought to impair judges in the exercise of that judgment.
Arkes sets himself against two competing traditions, the moral relativism of the left and the conservative positivism he identifies in particular with Robert Bork and Justice Antonin Scalia. Moral relativists receive special scorn: “The defense of privacy and sexual freedom has been identified with the rejection of moral truths … But … it is hard to see how any cause of justice could ever be advanced when its votaries proclaim at the same time that nothing they are saying, about the things that are just or unjust, has any claim to be regarded as true” (p. 261). Yet his real targets are conservative positivists:
[C]onservatives find a more prudent and secure ground to the law by fastening on the positive law of the Constitution. But that move, offered in the name of prudence, incorporates … the fallacy of presuming that the presence of disagreement, on matters of interpretation, marks the absence of truth. In the law, as anywhere else, the fact that any idea has been misused, or used wrongly, does not itself prove that the idea itself is untrue. The array of opinions on “natural right,” the proliferation of new, extravagant claims of rights, cannot itself prove that there is no such thing as “natural right.” The very notion of a misuse implies its own, apt remedy: For it implies that one can understand, in the first place, the difference between a misuse, or a wrongful use, and a rightful use… The remedy lies then mainly in sharpening our sense of how we have made those discriminations. But for the conservative lawyer, the prudential backing away from natural law produces … a backing away precisely from that confidence in reason itself as the ground of moral judgment.
Thus the essence of his claim is that there are fixed objective moral truths, accessible through reason, and that judges can (and indeed must) take these into account in deciding the law.
In reaction, a few brief points. First, it is unclear what role the framers, and indeed the Constitution itself, play in this prescription. Arkes emphasizes that the framers shared his view of moral truths and that much of their constitutional language is difficult to understand without recourse to background moral principles. One of his core examples (pp. 26-40) is the Constitution’s ex post facto clause, which apparently bars some but not all retrospective legislation: how can we know what is barred without considering background principles? And at times he seems hostile to approaches that would take constitutional principles beyond the framers’ understanding; speaking of attempts to find capital punishment unconstitutional, he criticizes those who think “some of the provisions of the Constitution no longer fit the sensibilities of our age” (p. 14). Similarly, he favorably invokes Justice Sutherland’s dissent in the Blaisdell case, objecting to the Supreme Court’s refusal to apply the contracts clause as written (p. 16).
But if all Professor Arkes means to say is that we should use the framers’ understanding of background moral principles to inform constitutional law, he’s not much different from Justice Scalia and other thoughtful originalists who embrace such an inquiry as a way to find the meaning of the Constitution’s text. Given how hard he works to distance himself from Scalia, Arkes must mean something different. Perhaps he thinks instead (as he appears to suggest elsewhere) that while the framers placed natural law principles in the Constitution, we should use our own reason to understand the true nature of those principles – which may differ considerably from the framers’ understandings.
If that’s the case, though, he’s not so different from Ronald Dworkin, Laurence Tribe, Jack Balkin, and other theorists of the constitutional left. Arkes is mistaken, I think, to identify the modern constitutional left with moral relativism. Moral relativism had its day in constitutional theory a while ago; it may linger in some disciplines, but today the constitutionalism of the left instead reflects moral certitude: it claims to apply core principles such as fairness and equality to understand the Constitution’s text differently from the framers. For example, the constitutional left (and some on the right) would take the Fourteenth Amendment’s core principle of equality and develop its true nature to encompass same-sex marriage (even though the framers didn’t see it that way). And that would be done as a matter of right, not as a matter of relativism.
I doubt Arkes would agree on the merits of same-sex marriage, but I don’t see that his position differs in principle. He could, at most, only say that its proponents misunderstand the true meaning of equality. Indeed, as Arkes himself recognizes in a masterful discussion of the Lochner case (Ch. 3), the modern privacy/autonomy cases rest on judicial elaboration of fundamental principles just as Lochner did.
And if we apply our own reason to reach our own moral understandings of fundamental principles, those understandings will inevitably change with the times, becoming more in tune with the “sensitivities of our age.” Even if moral truth is fixed, as Arkes insists, our understandings of it (and thus our adjudications) will evolve as we do. That is precisely the left’s capital punishment project that Arkes criticizes – it’s not an exercise of moral relativism, but a (supposedly) purer understanding of fundamental principles. Arkes in effect wants a form of a living Constitution, molded by judges according to judges’ reasoned moral understanding of fundamental principles.
That brings us back to his disagreement with Scalia. I think Arkes is mistaken, in the passage quoted earlier, if he means to say that conservative positivists like Scalia doubt moral truth. What Scalia doubts is judges’ superior ability to find and apply moral truth. Of course we all want our understanding of moral truth to prevail. But (perhaps apart from Justice Kennedy) none of us has the power to make that happen. The practical question for adjudication is this: are we better off with judges pursuing (as best they can) their idea of natural law, and imposing it on the rest of us? Or are we better off with judges following (as best they can) the commands of positive law – law that, in a democracy, reflects (to some extent and subject to substantial caveats) the collective moral judgment of the people?
Arkes does not really grapple with this question because he perceives the central issue to be whether there are moral truths. But one might think there are, yet also doubt that a small group of elite lawyers, acting in the artificially narrow confines of specific lawsuits, with limited access to and feedback from the wider world, are well situated to find them. That, I think, is Scalia’s competing position.
As a final thought, it’s not clear how a primary attachment to liberty influences that debate. Arkes’ approach does not seem to have a valence for or against liberty. For all his willingness to reconsider Lochner, Arkes himself is no full-throated libertarian. (In addition to his critique of the Pentagon Papers case, note the book’s objection to First Amendment protection for offensive speech and its opposition to assisted suicide). Judges (and professors) can use natural law principles to narrow freedoms apparently secured by positive law – though of course they can also use natural law principles to find freedoms not secured by positive law.
In sum, read this book. It will make you think differently about key constitutional cases, and it will present in new and challenging forms the most basic questions of constitutional law: who decides, and how?
Hadley Arkes Responds