Reading Antigone in the age of coronavirus.
Judge Pryor’s Friendly Fire
Apparently, for some of our friends, the spectre of natural law is arising in the land. Something has set off an alarm reflected, of all things, in the talk given by my friend William Pryor as the Joseph Story Lecture at the Heritage Foundation. Judge Pryor used the occasion to warn, in a politically balanced way, of the threats to the rule of law from the left as well as the right. From the left, it was the menacing threat to pack the Supreme Court in an unconcealed move of intimidation. And from the right, the threat emanated from the people invoking natural law and arguing for “A Better Originalism.” These are writers who do in fact take their bearings from the teaching of the American Founders and the original meaning of the Constitution. But they take issue with an originalism that prides itself in steering around the questions of moral substance in those cases that have roiled our laws and remade our culture.
I’ve counted myself a friend of William Pryor since I encountered him years ago as the young Attorney General in Alabama, thoughtful, on the mark, and quite scholarly. As a nominee to the federal courts, he was courageous. The Judge has been scrupulous and precise in his use of sources, and that is what jolted me with a certain surprise as he loosed his terrible swift sword on those of us who have worked in the vineyard of natural law. Or to switch the figure, he was shooting at the wrong target with friendly fire. He was quite unwarranted in the positions he was imputing to us; and in my own case, it was a critique that rang false as it bore on my own books and writing on the natural law over the past 35 years. On that matter of natural law, I’m afraid that he was simply taking for granted a cardboard version, of the kind that has been passed along over the years, occasionally arising to caricature. Or to put it more gently for a friend, let us say that he was offering an account, not “strenuously correct,” of the teaching he was making the object of his derision and reproach.
Not Judges Alone
First, his account of his adversaries: The writers who joined in the call for “A Better Originalism” had never claimed that the judges should become the sole authoritative branch of the government in expounding the principles of natural justice. Or even the leading branch. We have sought, rather, to revive the understanding held by Lincoln and his party on the rightful authority of the political branches to act as interpreters of the Constitution—to counter, narrow, even overthrow judgments of the Supreme Court. Lincoln and his Attorney General moved immediately to challenge the holding in the Dred Scott case through administrative decisions. And Lincoln’s Congress passed, in 1862, a bill that barred slavery from the western territories. It was a move, that is, to counter and overturn the decision in Dred Scott through an act of ordinary legislation.
In my own case, it probably fled the memory of Judge Pryor that I had been the main architect and advocate for the Defense of Marriage Act in 1996. As I explained in my testimony on the bill, we were inviting the Congress to give a lead to the courts in interpreting the Full Faith and Credit Clause (Art IV, Sec 1) in the Constitution as it bore on an issue that agitated our politics and our laws: whether a state should be obliged to credit a same-sex marriage coming in from abroad, or from another state, when same-sex marriage ran counter to its laws. During the hearings, Congressman Barney Franks remarked that this whole thing—the Congress dealing with marriage and the courts—was “unconstitutional.” And I said, “Congressman, you make our very point: It is quite legitimate—and obligatory—for you to make a judgment on the constitutionality of those measures coming before you. And if you think this bill is unconstitutional, you should indeed vote against it on those grounds.”
We were backing then into the understanding of Chief Justice Marshall in Marbury v. Madison, in a passage that should resonate with Judge Pryor. Marshall insisted that it was the obligation of the Court, in any case, to measure a statute against the terms of the Constitution and give primacy to the fundamental law. But Marshall never said that this was an obligation confined to judges. If any President were faced with a bill, say, that conscripted into military service only the members of a minority race, would he have been confined to the question of utility—to the question of whether the measure would “work”? Or would he have been obliged, no less than members of Congress, to consider whether this bill they were asked to enact, and sign into law, was really compatible with our fundamental law? And as Madison famously said in Federalist #10, “what are many of the most important acts of legislation, but so many judicial determinations?”
In other words, we might make Judge Pryor’s argument, even a bit better.
Judge Pryor shares with us the understanding that the Constitution did not spring from a brute imposition of force—it was drawn from some anchoring “truths” about the rightful governance of human beings. As the understanding ran at the Founding, no man was by nature the ruler of other men in the way that God was by nature the ruler of men, and men were by nature the rulers of dogs and horses. The “self-evident” truth of the Declaration then was that the only rightful government for human beings drew its just powers from “the consent of the governed.” That truth held wherever that nature remained the same—it was a truth, as Lincoln said, that was “applicable to all men, and all times.” It had to follow then that the positive law emanating from a government constituted in this way would be radically different from the positive law, say, of Stalin’s Russia. As George Washington put it, “The very idea of the power and the right of the people to establish government presupposes the duty of every individual to obey the established government.” The positive laws made in this way come with a different moral claim on us, which is exactly why Lincoln said that even a bad law should be obeyed until it can be changed in a legal way, with “the consent of the governed.”
But Judge Pryor gives us this oddity: He affirms that the natural law comes into play in furnishing the moral ground of the Constitution. And yet he eviscerates that claim in one of his following, critical steps. For in his rejection of natural law, he recalls the legendary Justice James Iredell, who was a member of the first Supreme Court, and who is often celebrated for his dubiety about natural law.
Pryor quotes Iredell in his famous line that natural justice “is regulated by no fixed standard.” No fixed standard? Is that anything but an oblique and stylish way of saying: No standard of truth by which to distinguish valid claims of natural law from the specious? And so let us take stock: Judge Pryor tells us that the Founders drew upon the principles of natural law and natural right in framing the kind of government they did. But now he says that there was no standard of truth behind those notions of natural law, no truth to establish what was deeply rightful about this form of governance. The drafters of the Declaration thought they were appealing to a “self-evident” or necessary moral truth—as Hamilton said, it was one of those “primary truths” containing “an internal evidence which, antecedent to all reflection or combination, commands the assent of the mind.” Are we told now that there were no such truths, only certain slogans that were fashionable among an educated elite?
With this move, I’m afraid, Judge Pryor backs into that unacknowledged premise that has been dominant in conservative jurisprudence over the past 40 years: that appeals to natural law are slippery because they are subjective, based on no real truths. How often have we heard the line from some of our leading minds, including one dear, late friend of mine, that “when a judge moves outside the text of the Constitution he is simply looking inside himself.” That is, he is all too willing to find the ground of natural law in his own merely personal passions. To treat all appeals to the moral truths of the natural law in that way is to smuggle in the premise that—wink, wink—we really know that there are no such truths.
What is at issue right now in the war among the originalists is that some of us would recover the way in which that first generation of jurists showed the knack of tracing back to those anchoring truths that underlay any of their judgments. They would reach then to those grounding truths that were there before the Constitution. They were the truths that the Founders had drawn upon in establishing a rule of law rather than a despotism. Those truths were there before the Constitution, and they would be there even if there were no Constitution. John Quincy Adams caught the sense of this later when he argued that the right to petition the government was simply implicit in the logic of republican government. It would be there even if it had not been mentioned in the First Amendment; it would be there even if there were no First Amendment; it would be there even if there were no Constitution.
Hamilton surely gave us the most elegant demonstration here. With his remarkable turn of mind, he showed us, in Federalist #33 that the logic of the “Supremacy Clause” and the “Necessary and Proper Clause” would be there even if they hadn’t been mentioned in the Constitution. The Supremacy Clause would arise from the logic of a truly national government, empowered to make laws binding on all persons and subordinate States. If that power weren’t there, we would merely have a Confederation again, rather than a real government. The “Necessary and Proper Clause” would flow, as he showed, from a being “with the ability or faculty of doing a thing” or what we call these days a “moral agent”: a being with the power to choose his own ends. As a being with the power to reflect on matters of right and wrong, he would choose to direct himself only to legitimate ends; and he would summon the powers that were not only useful and necessary, but legitimate (or proper) in pursuing those ends.
What Judge Pryor and our friends on the other side have not quite grasped is this: The work of the natural law was not done once the Constitution is established and certain rights and objects marked off in the Bill of Rights and other clauses. What they have not quite been able to see is that the reasoning of the natural law does not come to end; the judges engage it every day as they work through their practical judgments. I wrote a book years ago, Beyond the Constitution (Princeton, 1990), in which I sought to show that judges persistently find it necessary to move beyond the text of the Constitution, to those principles that were there before the Constitution, for the sake of showing how the Constitution may bear sensibly on the cases coming before them.
This account would of course take notice of those domains, in foreign and military policy, where the natural law itself would forbid the intrusion of unelected judges. The anchoring principle of the regime, of course, is that the governance of human beings draws its just powers from the “consent of the governed.” That principle must bar, from the field of foreign and military policy, unelected officers, who bear no direct responsibility to the people whose lives are at stake. When it comes to recognizing foreign governments or dealing with the rough justice of the battlefield, these are domains into which judges should not dare venture, even when they could be protecting people from virtually all manner of denials of their natural rights.
But where those barriers do not exist, it becomes utterly implausible to contend that genuine moral truths will not hold their validity—and their claim to our respect—when they arise within cases coming before judges. Take simply the proposition that Thomas Reid and James Wilson, along with Immanuel Kant, regarded as the first principle of all moral and legal judgment: that it makes no sense to cast moral judgments of praise or blame on people for acts they were powerless to affect. As Reid put it “[T]o call a person to account, to approve, or disapprove of his conduct, who had no power to do good or ill, is absurd. No axiom of Euclid appears more evident than this.” That principle underlies the “insanity defense,” but also the case against racial discrimination, and it threads through many parts of our law.
Surely Robert Jackson caught the core of the matter here in the Hirabayashi case (1943), the case of an American citizen of Japanese descent, who was contesting his removal to a “detention camp” for Japanese during the War. As Jackson put it in his dissenting opinion, “here was an attempt to make an otherwise innocent act a crime merely because the prisoner is the son of parents to which he has no choice, and belongs to a race from which there is no way to resign.” (Italics added.) In other words, he was indeed suffering punishment for acts or conditions that he had been “powerless to affect.” Now could it really be contended that a proposition of this kind, what Hamilton called a “primary” and necessary truth, can somehow be barred from that vast domain of what judges do in deliberating about cases?
The judges may have little awareness these days when they draw upon the axioms of natural law, when they draw upon propositions of this kind. Many judges have come to identify the natural law with cloudy “theories” hovering in the sky. What is blocked from view here is the understanding of natural law that finds its ground then, as Thomas Reid wrote, in those axioms of common sense that ordinary people may readily grasp—quite as they grasp the point that “we don’t hold people blameworthy or responsible for acts they were powerless to affect.” These are the kinds of things that the man on the street has to take for granted simply to get on with the business of life. And they are the kinds of things he has to know before trafficking in “theories.” Before the ordinary man can banter with David Hume about the meaning of “causation,” he knows, as Reid said, his own active power to cause his own acts to happen.
With that same natural sense of things, he may grasp as easily that he can draw no moral inferences about people on hearing that they are tall or short, heavy or light, afflicted with deafness or Down’s syndrome. Ordinary people may not have the philosophic vocabulary at hand, but they sense that none of these attributes can have a deterministic force in controlling the moral character of anyone. And so if medical care were withheld from a child afflicted with spina bifida and Down’s syndrome on the ground that a child with these afflictions had a “life not worth living,” then as Ralph Winter recognized, that was not a medical judgment but a moral judgment. And if Ralph Winter as a federal judge could draw upon that moral reasoning, what is it that bars that reasoning of the natural law from the kit of every other judge?
In one of his gravest strokes, Judge Pryor drew on an old line and accused us of favoring a “results-oriented” jurisprudence. But once again he picked out the wrong target. The aim was wrong because our own position is anchored, again, in those “primary” and necessary truths, as Hamilton had them, and they alone have a categorical force: And so, from the very “logic of moral judgment” we would say that anyone accused of a crime and facing serious punishment should have the right to see the evidence and witnesses arrayed against him. For then he could rebut them, and in rebutting them, produce a verdict that is substantively accurate in distinguishing between innocence and guilt.
And yet, working with these principles, juries and judges may become corrupted and produce perverse results. Still, that would not dislodge us from our conviction that anything calling itself the “rule of law” must contain the right of the accused to see the witnesses and evidence brought against him. That is what we really mean when we speak of principles of jurisprudence that retain their intrinsic rightness even when they produce results we do not find congenial.
But that is not what I think we are offered by Judge Pryor and our friends on the other side. Their position comes closer to that of Stephen Douglas in his debates with Lincoln when Douglas professed not to “care” whether slavery was voted up or down as long as it was done in a democratically correct way with the vote of the majority. The teaching here was that the “system” was all “process” and no “substance”—that we were free to order anything through this democratic regime—free to vote in slavery, or we might say, abortion—as long as it was done with the vote of a majority. This was, indeed, a process serenely detached from things “substantive.” But the rule of the majority was not a principle itself; it was drawn from a deeper, underlying principle.
Lincoln explained in his First Inaugural Address that the rule of the majority is the only operational form of government by the consent of the governed. And yet, detached from that underlying principle, the rule of the majority had no intrinsic moral significance. Some of our judges do in fact detach it, by insisting that the underlying principle, contained in the Declaration of Independence, was never enacted in the positive law. But detached from that anchoring principle, the rule of the majority would find its justification where Justice Holmes found it: in the bare fact that a majority can overpower the minority. In other words, The Rule of the Strong. It may come as news to some of our friends, but the goodness or badness of the rule of the majority can depend solely on “the results”: on whether the majority has governed well or badly as it tries to govern justly.
Judge Pryor would hold, of course, that the majority may be overridden to protect the rights mentioned in the Bill of Rights. But abortion is not mentioned in the Constitution. And so somehow judges are bereft of the tools to judge the moves to withdraw the protection of the law from a whole class of small human beings in abortion. For some reason still to be explained, the substance of that question is regarded by some of our friends as quite beyond the rightful reasoning of the judges.
William Pryor remains one of my true favorites among judges, but I would plead that, in this case, he could have rendered a better justice to his friends—and given a more just account of the things, right now, that divide us.