Oliver Wendell Holmes was wounded three times on the battlefield, and his Civil War experiences affected his outlook and Supreme Court jurisprudence.
Once again I appreciate Michael Ramsey’s thoughtful comments as he extends the discussion of natural law and the Constitution. We will have the chance to move even further into this discussion when he joins us, in March in Washington, in our seminar for judges and professors under our new Claremont Center for the Jurisprudence of Natural Law. His added commentary here would indeed furnish more material for that discussion, but it may also bring signs that our differences are narrowing in the most revealing way. To take a line from a colleague of mine, it could be that we are, on some critical points, “in heated agreement.”
We will have the chance to pursue all of this more fully in our seminar, but if our readers have been attentive to Prof. Ramsey’s fine post, it could be useful just to set down just a couple of key markers for the understanding that may emerge here.
Harry Jaffa has made the point, in defense of Lincoln, that no politician in Illinois could have been elected if he had been willing to challenge the law that barred marriage across racial lines. Whatever Lyman Trumbull’s deep thoughts were on the matter, I don’t think there can be much serious question that he was reflecting the understanding that prevailed in the political world when he assured his colleagues that nothing in the Fourteenth Amendment would dissolve those laws on misceganation, in Illinois or Virginia. Prof. Ramsey points out that there were “judicial decisions” coming later that took the opposite view. Quite right, just as there were sentiments in opposition to racial segregation at the time. But clearly, we cannot rightly take those views as the “original understanding” of the men who framed, passed, and ratified the Fourteenth Amendment. For the evidence strongly suggests that there was no way the Amendment could have been passed if it were understood to overturn those laws on marriage and race.
It is telling that Prof. Ramsey holds out to us these alternative grounds then of understanding the original meaning of the Fourteenth Amendment on this matter of race and the law: (a) the decisions made by judges, finding that the deep principle in the Amendment would bar those restrictions on marriage between the races, and (b) that “the public meaning of the phrase [“equal protection of the laws”] did preclude the bans” on interracial marriage. Set against those alternatives was Trumbull’s assurance that the Fourteenth Amendment would not threaten those laws. Now, how would Prof. Ramsey have us choose among these alternative views? I find it hard to believe that he would turn this simply into an historical exercise to find out which view was closer to the understanding held by the men who framed, voted for, and ratified the Amendment—an impossible project in any case. I’d submit that the common sense of the matter is that he and I would act in the style of those judges he cites: that we would simply try to figure out which understanding of the principle of “equality” and the law seemed to us most plausible, defensible—in short, which one is more arguably right. Prof. Ramsey says, “these are historical questions; they don’t turn on what I think the right moral principle is.” The truth, I think, must be quite the other way around: that it cannot be anything other than our attempt to reason out what “the right moral principle is.”
Prof. Ramsey aptly notes that, in the understanding I put forth, “under a natural law approach it isn’t the nature of equality that’s changed, but rather our understanding of it.” I’ll presume, for the sake of argument, that Prof. Ramsey agrees that the ban on interracial marriage runs counter to the deep principles contained in the Fourteenth Amendment. If that’s the case, it is because we understand more about the logic of those principles, not because the principles themselves have changed. But in that event, this understanding would seem to be at odds with his complaint that we are on a path that “leads to a Constitution that as a practical matter evolves as our understanding of true principles evolves.” But “under the natural law approach,” as he recognized it, the Constitution itself and the principles, are not evolving. What may be changing is our own understanding. We may see now the implications of our own principles that we hadn’t seen earlier: we call it moral learning if we have it right, and a slip into moral obtuseness if we have it wrong.
For reasons running back to the same root, I’d have to insist that Prof. Ramsey still doesn’t have it right when he would liken me to the professors who are arguing for same-sex marriage. For they too, as he says, are moving away from the text, trying to find that deeper principle lying behind the text. Prof. Ramsey certainly must be able to credit the possibility that one of the two sides could have it right here and the other wrong. What we are seeing here may simply be another instance of that elementary point in moral philosophy: the fact that people seem to be acting in the same way (in this case, going beyond the text) does not mean that they are animated by the same purpose, grounding their judgments in the same reasoning. People may refrain from eating the flesh of animals because they find it disagreeable or because they have a moral objection to feeding from the flesh of these sensate creatures. These people are not “doing the same thing” even when they seem to be doing the same thing. As I pointed out earlier, there are many serious differences in the substantive arguments made by the defenders of marriage as a union between a man and a woman, and the people who would argue for a strikingly different meaning of sexuality and marriage. Our differences on the constitutional judgment will depend foremost on those substantive arguments on marriage and sexuality. And so I would simply plead again to Michael Ramsey that it is just cannot be the case, as he says, that the two sides “approach the Constitution in the same way.” The similarity is wholly on the surface; the differences run to the core.
But to mark these things is to mark the path that Michael Ramsey has been taking in his own generous response to my commentaries, for he remarked, so rightly, at the end of his response that there are, finally, “non-positivist reasons we might want positivist rather than naturalist judges.” Yes, just as there are non-positivist reasons for having a positive law in the first place. Or having that positivist construction called a “written Constitution.” We recall Locke’s three questions: What is the source of the positive law? The legislature. What is the source of the legislature? A constitution. But what is the source of the constitution? As Locke says, that source must be “antecedent to all positive laws.” The authority to establish that Constitution must be “depending wholly on the people,” on their natural right to be governed with their own consent.
We simply remind ourselves here that the tradition of natural law itself put in place the case for positive law. We may understand the principle that would bar us from driving at speeds that put innocent life at hazard, but we need translate that principle into regulations of the positive law: 70 mph on the four-lane highway, but 35 mph on this winding country road. As Kant pointed out, behind the positive law is a deeper natural law that tells us why we are justified in having a law on the subject in the first place.
Prof Ramsey has been brought to this point by the recognition that we have a choice to face: Are we willing to have judges engaging in the discipline of moral reasoning or do we think it is practicable, and far preferable, for them to do their job by adhering to the positive law without engaging in that moral reasoning. His own inclination is to think that we are “better off” with judges avoiding that strenuous life of moral reasoning, which they may barely comprehend. And when he suspects that we are “better off,” he knows that he would be appealing finally to some understanding of a “good” that is not spelled out in the positive law of the Constitution. I was raising the question of whether that good is merely a utilitarian calculus of benefits set off against costs. Or might it be something good “in principle,” a good anchored in a ground that will remain the same, retain its goodness, even as the returns keep coming in and changing on the costs and benefits? And so, we seem to be agreed now on the problem. There must an anchoring ground—it is, as Prof Ramsey says, a “non-positivist” ground for the law and constitutionalism we would shape. He has brought the conversation to this focal point. We are both speaking prose, and I can’t wait to see him in Washington when the conversation resumes.