I want to thank my friend, John McGinnis, for the good things he had to say about my new book, Mere Natural Law. But in his more critical commentary he seemed to be talking about some book other than the one I wrote.

For one thing, readers might have been left wondering about the meaning of that unusual title, Mere Natural Law, drawing something from C.S Lewis. It was pointing to an understanding of natural law grounded in the precepts of common sense that ordinary men readily grasp. It was not a “theory” or a body of grand sentiments hovering in the sky. That title was reflected then in the argument running through the book. John McGinnis, as savvy as I’ve known to be, never explained anything about that argument connecting the chapters, and reflected in the title. That became the source of an ideological filter, I’m afraid, that distorted the account he gave of the book. 

But let me clear away some ground first.

McGinnis calls me again to the virtues contained in the very structure of our Constitution, the virtues explained further by him and Michael Rappaport in their work on the “supermajoritarian” Constitution. I don’t see how it passed his notice that I have defended and celebrated that structure of the Constitution, in this book and in everything else I’ve written. I’ve spent a career teaching the writings of the American Founding, and I don’t have to be enjoined to respect the Constitution as it was written.

The argument in the book was not against Originalism, but a truncated Originalism, which detaches the Constitution from the moral ground of the Constitution, as the leading Founders understood it. John Marshall, James Wilson, and Alexander Hamilton had a remarkable knack of tracing their judgments back to those axioms or anchoring truths that the framers had drawn upon in shaping the Constitution. They did that in the course of applying the Constitution to the issues and cases coming before them. They certainly did not think that when a judge departed, as they did, from the text of the Constitution that he was merely “looking inside himself,” that he was drawing merely on his most “personal” preferences. Plainly, they did not hold to the heresy that there were no moral truths outside the text of the Constitution.

But the key to McGinnis’s misreading of the book was revealed when he recalled my mention of John Marshall, in a kind of throwaway line in Gibbons v Ogden: Marshall apologized to his readers for spending so much time “demonstrating” what should stand in the class of an “axiom.” McGinnis described Marshall’s explanation here as nothing more than a rule of “textual interpretation.” No. Marshall was bringing the reader back to the ground on which we claim to know anything. Marshall assumed that all of his literate readers understood that, before any “demonstration” could be arranged, a person had to grasp certain truths as true per se nota, as true in themselves, such as the law of contradiction, that two contradictory propositions cannot both be true. If one didn’t grasp that point, it couldn’t be explained in a demonstration. It was the kind of thing that a person had to know before he stepped into the demonstration.

This was exactly what Alexander Hamilton was explaining when he said in Federalist 31 that “in disquisitions of every kind, there are certain primary truths, or first principles, on which all subsequent reasonings must depend. These contain an internal evidence which antecedent to all reflection or combination commands the assent of the mind.” Hamilton was doing nothing less than explaining the ground on which his judgments ultimately rested, and they were the anchoring axioms that he and his colleagues had drawn upon as they set about to frame the Constitution. He was making his way, as he said, to “first principles,” the principles that were there before the Constitution. In other words, it was an appeal to those deeper principles behind the law—whisper: the natural law.

And one of the first things that the ordinary man grasped in that way was what Kant and Thomas Reid (and Aquinas) regarded as the first principle of all moral and legal judgment: that it made no sense to cast judgments of blame or praise on people for acts they were powerless to affect.

That axiom not only explains the insanity defense, but it explains also the real wrong in principle of racial discrimination, and the implications drawn further from that axiom run widely through our law. Combined with others, they come to bear in a practical way on such matters as withholding medical care from a child born with spina bifida, or compelling a businessman to take on a public function of funding contraceptives and abortifacients for his employees. And so, contrary to the cliches we hear so often, there is nothing foggy or woolly about these maxims of the natural law; they come to bear on our practical judgments in precise and concrete ways. They do not suddenly become woolly to any man when he puts on the robe of a judge.

But nothing of this argument, developed in the book, comes through McGinnis’s review. His commentary is locked into the assumption that the natural law is some kind of theory hanging in the clouds, which may be invoked from time to time.

The most telling misunderstanding is his angle of vision on the Dobbs case, for it shows the path of argument that he simply puts out of sight. Fifty years ago, with Roe v. Wade, the conservatives had two paths before them. The lawyers from Texas drew on the most updated findings from embryology, woven with principled reasoning, to show that the offspring in the womb had never been anything other than a human being from its first moments and never merely a part of its mother’s body. On the strength of that argument, made so compellingly, the Supreme Court could have decided, as it has in other cases, that the legislature in Texas had an ample justification for the casting of its laws. In this case, for casting the protections of the law on those small human beings residing for a while in their mothers’ wombs. The majority in Roe, of course, did not take that line, but the conservatives in dissent could well have taken it. They could have put on the record then the massive evidence brought forth by the lawyers from Texas in making their substantive case. But instead, Justices White and Rehnquist moved to the argument that has become a mantra for conservatives: that abortion was nowhere mentioned in the text of the Constitution and therefore federal judges had no grounds on which to proclaim any such right emanating from the Constitution.

And that is how conservatives have fixed on the meaning of Roe down through the years. They settled on the mechanistic reading, that abortion wasn’t in the text of the Constitution, and they would block from sight that other path, leading to the protection of that child in the womb. That also explains why McGinnis and others think that the Court did all it needed to do in Dobbs when it simply declared that there was no such right to abortion contained in the Constitution. But Roe had not merely created a right to abortion; it changed the culture. It converted abortion from something abhorred, discouraged, forbidden, into something to be approved, celebrated, promoted. The Court in Dobbs did nothing of course to counter that moral significance that had inescapably grown up around the decision in Roe. And curiously, it was the dissenters in Dobbs who caught exactly what was so embarrassing in the opinion of the Court. As they plainly put it “the majority takes pride in not expressing a view ‘about the status of the fetus,’”–that “the state interest in protecting fetal life plays no part in the majority’s analysis.”

But surely, it did not take any esoteric theory, or any theatrical appeal to natural law, to recognize that the central problem of the case has ever been the matter of killing small, innocent human beings. It was only by masking that question from its sight that conservative jurisprudence could say that, when the Court struck down Roe—when it simply declared no right to abortion in the Constitution—that it did all that a conservative jurisprudence could do.

On the matter of religion, McGinnis should know that I am no more inclined than anyone else to have the authorities offering their analyses of religious doctrines. But as we have long known, religions may incorporate such practices as burning widows on funeral pyres, and the Supreme Court has long made it clear that certain practices cannot evade the restraints of the law solely because they are performed under the auspices of religion. Nowhere did the Court intimate that these practices might evade the restraints of the law if they were engaged in “sincerely.” McGinnis simply glides in his willingness to accept that familiar defense of religious freedom that begins, as John Courtney Murray warned, by performing a “libel” on religion: litigants become willing to reduce their convictions on matters of religion and moral judgment to mere “beliefs,” which offer no claim to truth for anyone who doesn’t share them. But in affecting to hold them seriously, they plead for an exemption to laws that are binding on everyone else. In this way, though, the defenders of religious freedom turn away from offering a substantive challenge to the laws that threaten the freedom of the religious—as they turn away from an appeal to other constitutional principles, which might work quite as well to protect the freedom of the religious, even without unfurling the banner of religion.

The Declaration of Independence invoked the Creator who endowed us with rights, the Author of the Laws of Nature, including of course the Moral Laws. That understanding of God has been bound up with the American regime since its founding. In our own day, the Supreme Court is unclear as to what constitutes “religion,” or whether religion could be understood coherently without that G-word. But if people are Originalists, they should readily grasp that the God of the Declaration of Independence could never be compatible with a religion of Satanism and the affirmation of radical evil. To recognize that point is to recognize that the law cannot retreat to a position of thorough relativism, even as we try to secure a wide religious freedom in this country.

McGinnis surely misreads me on that critical case of Trinity Lutheran Church v Comer. The school of a church was excluded, as he says, from a program for making playgrounds safe. He does not quote me accurately, though, when he has me saying that the Court used a “lever for the religious not found in the Constitution.” What I had said was that “this lever for the religious is nowhere found in the text of the Constitution.” (my italics.) There I was making the obvious point that nothing in this statute withholding a public service deprived the members of the Trinity Lutheran Church of the free exercise of their religion under the First Amendment, their freedom to worship and preserve their church. Nor did the statute involve any “religious test” for public office found in Article VI. Nothing in the text of the Constitution was being denied here. If there had been no program of aid to schools for playgrounds, no one would have suffered a wrong in being denied such aid. Justice Scalia famously held strongly to the text of the Constitution, and yet he recognized, in a comparable case, that there was something wrong in creating a disability for people, in their access to a public benefit, based solely, decisively, on their religion. It took the Court until the Trinity case to come around to that view. But the road was harder precisely because this principle on creating a religious disability was not to be found anywhere in the text of the Constitution.

But let me return, in ending, to where I began: McGinnis’s misreading of John Marshall’s explanation of what he was doing in Gibbons v. Ogden. McGinnis says that Marshall was merely appealing to “rules of textual interpretation.” But those “rules,” of course, are nowhere contained in the text of the Constitution. Then how do we claim to know them? Is McGinnis supposing that there are “canons” on interpretation, which may guide us in distinguishing between theories of interpretation that may be plausible or implausible, true or false, right or wrong? What might we call this understanding, this mode of reasoning not contained in the text of the Constitution, but which gives us a guide in distinguishing between rightful and wrongful ways of applying the text of the law to the cases coming before us? Are we in the presence again of that dreaded N-word—natural law?

To ask whether a judge can get through his day without relying on the natural law at every turn is rather, as I’ve said, like asking, “Can I order the coffee without using syntax?” The reasoning of natural law is just woven through everything he does, even when he doesn’t call it natural law; and so fundamental is it, so woven into our habits, that he may be hardly aware that he is using it. And like my friend John McGinnis, he may discover that he is never far from the natural law, for it is with him every day.