September 30, 2010

At a time when judges and Supreme Court justices in the United States are fending off criticism from all sides for legislating from the bench or failing to maintain full judicial independence, one Amherst College professor is calling for a return to reason.

Well, moral reasoning. Or rather, the reasoning of the natural law.

Hadley Arkes, the Edward N. Ney Professor in American Institutions and one of the nation’s leading proponents of natural law jurisprudence, has published a new book of essays that makes the case that natural law furnishes judges with the deepest principles of law, principles anchored in the “laws of reason.” At points controversial and contrarian, Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law tackles long-held beliefs of both the political left and the political right and revisits Supreme Court cases and doctrines settled years ago. 

Arkes, Hadley
Photo courtesy of the Ethics and Public
Policy Center

Since the book was published by Cambridge University Press this summer, Arkes’ colleagues have been intrigued by his analyses. “Who but Hadley Arkes could produce a page-turner on classic constitutional cases?” said Mary Ann Glendon of Harvard Law School. “Constitutional Illusions is just that—an intellectually thrilling hunt for truths about man, nature and government encoded in decisions so familiar that we have lost awareness of their deepest meanings.” John O. McGinnis of Northwestern University Law School wrote a similarly thoughtful Wall Street Journal review: “Judges could benefit from Mr. Arkes’s subtle and meticulous arguments if only by incorporating a few of his ideas into their own broad views—not least the principle of prudence that he defends throughout Constitutional Illusions & Anchoring Truths.”

Arkes spoke with Public Affairs’ Caroline Hanna about his work, natural law and the new book, as well as teaching and the gifts that Amherst has given him. An edited transcript of the conversation follows.

Where did you get the material for your book?

This is all tied in with teaching at Amherst. My courses are usually arranged in the form of a continuing argument that we’re building throughout the semester. My second book, The Philosopher in the City, came out of my class on urban politics. Since then I’ve never done a book that I hadn’t had a chance to test in class, to see how the argument could be made more compelling—and disarming. With this book, several of the chapters come out of things I do in my course “The American Constitution I: The Structure of Rights.” The others are from various public lectures I’ve done over the last few years.

How would you describe the book?

The “pitch” here is that certain doctrines once thought clear, and cases long thought settled in our law, have been the source of illusions or tricks of the eye. Those illusions have fashioned a kind of lens in viewing the landscape of the law. With the lens in place, we have seen, for example, “prior restraints” on publication where they have not been—and failed to notice them where they are. I argue that it’s the logic of the natural law that finally provides the key to this chain of puzzles.

How did you decide on what issues to focus?

There were some interesting puzzles that sprung up while I was teaching about the Constitution, certain concepts that seemed so settled that no one was arguing about them anymore, such as the meaning of ex post facto laws—that you can’t make something punishable after the fact that was not considered punishable when the act was done. And yet there are many places where the law works retrospectively. The Congress puts price controls back on after price controls were suspended, for example, and cancels contracts made when the prices were not controlled. Or the Congress establishes in the 1970s that anyone who engaged in acts of genocide between the years of 1933 and 1945 in the war in Europe may now be barred from the country. It turns out that we can, in fact, impose serious punishments after the fact. The question then is what constitutes acting with or without justification. If you’re acting with justification, the law ceases to be an ex post facto law. The critical point is not that the law punishes after the fact, but whether the act is justified or unjustified.

Arkes book

This ties back in with moral reason, correct?

Yes. In my earlier book, Beyond the Constitution, I was trying to show that, as we tried to apply the Constitution to the cases before us, we were persistently drawn back to those principles that were antecedent to the Constitution—that is, the principles that had to be in place before we could even frame a Constitution. In that book I dealt with the original argument over the Bill of Rights. Even lawyers and judges forget that there was an argument, at the beginning, over the Bill of Rights, and that the people who were reserved about a Bill of Rights were not reserved about rights. In fact, the concern was that the Bill of Rights would misinstruct the American people about the grounds of their rights. Have you ever heard someone appeal to “those rights I have through the First Amendment”? Is the implication then that, in the absence of that amendment, they would not have the right to speak and publish and assemble? That was a heresy, which revealed a deep misunderstanding about the nature of rights—and the rights that the Founders had meant to protect in the Constitution.

What is natural law?

A former colleague remarked once that “Hadley has a theory of natural law.” To say that we have theories of natural law is to suggest that people can stand back and view all of those “theories” whizzing around them, and they somehow make judgments about the theories that are plausible or implausible, true or false. I told him, “Just take me back to the grounds on which you make judgments of that kind, and you would take me to the ground of what I take to be the natural law.”

Natural law involves those canons of reason that must be in place before we can even have a system of law. The person who asks, “Can I reach judgments in the law without appealing to natural law?” is rather like the man who asks, “Can I order coffee without using syntax?” It’s rather like that character in Molière who discovers that he has been speaking prose all his life. We suddenly realize that, in “doing law,” we find ourselves depending at every turn on canons of reason that were never set down in the text of the Constitution. And they will be there, even as constitutions come and go.

The essay you wrote on the case involving the New York Times’ publishing of the government’s top-secret Pentagon Papers in 1971 has been mentioned as a particularly interesting one by John McGinnis, who reviewed your book for The Wall Street Journal. Tell me about your view on that case.

Justice Byron White was really convinced that someone was going to get killed as a result of those papers getting published. [The papers involved a study of the United States’ military involvement in Vietnam from the 1940s to the 1960s.] White virtually invited the government to bring a prosecution under the Espionage Act on the day after the papers were published. To take him at his word, he would rather have put Arthur Sulzberger, the publisher of the Times, in jail than enjoin the publication of material that he was sure would get people killed—that gravely did he regard the matter of restraining publication in advance. Only Justice Hugo Black was ready to take a categorical position and reject all restraints in advance of publication. The other judges, in one way or another, were willing to hold to an older doctrine that there could be circumstances in which it was quite tenable, and patently justified, to restrain publication in advance—as in publishing information in wartime about the schedule of ships about to leave with troops on board. In other words, most of the justices did not think there was a categorical rule that barred all restraints in advance. There were three dissenters in the case, three Republican judges—Burger, Blackmun and Harlan—and six judges in the majority. But the majority could not produce an “opinion of the Court.” All they agreed upon was a decision not to grant an injunction barring the Times from publishing the Pentagon Papers.

Six judges were in the majority, but only one of them thought that there was a categorical rule that barred all restraints in advance under all conditions, even wartime. The remaining five all thought that whether we restrain in advance or not would depend on the circumstances. What, after all, did the papers contain? Something too dangerous to reveal? The matter had to hinge on a reading of the papers, set against the context in which they were being published. So most members of the majority told us that there was no categorical rule; that it all depended on what is contained in the papers. And yet, it comes out that they hadn’t even read the papers. Justice White said that the papers were sealed. Why were they sealed? Because there’s dangerous stuff in there. It was a classic [example] of incoherence. They repudiated their judgment in the case nine years later—they rejected every argument that was pivotal to the case of the Pentagon Papers—but they held back from acknowledging that they had in fact been gravely wrong.

Why did you dedicate the book to Michael Petrino ’68 and his son Michael ’03, Jay Beech ’67 and his son Scott ’99, Doug Neff ’70 and his son John ’09 and Kevin Conway and his sons Jack ’10 and Ryan ’12 “from the professor blessed by their presence in class and their counsel in later years”?

One of the most charming parts about being at Amherst is that I’ve been able to see—and teach—the children of some of my former students. It’s been really nice to see the sons and daughters of those students who were dear to me earlier in my time here. I haven’t taught the children of all of those favorite former students, of course, but most of the people I mention in the dedication I had taught in my first few years at the college in the 1960s. Jay Beech, for example, was in the very first class I taught at Amherst in the fall of 1966. I had flashes of fear for a long while that the students in that first class would write in to get their money back.

This experience of knowing the parents as well as the children reflects something distinct about life at this kind of place. Reunion Weekend is my favorite time of year, because you can see what people look like 10, 20 years later. It seems to astound them that I can often recall the best arguments they had made, including things they had forgotten that they had said. To me, they’re still 20 years old, and I still see them as they were then. In the case of the people mentioned in the dedication, these are gifts of two generations. It’s quite lovely.