Natural law seems an unlikely topic for extensive television coverage, nor would one expect United States senators to develop high anxiety over the subject. Yet the confirmation hearings of Justice Clarence Thomas brought both of those improbable events to pass. Thomas and Senator Joseph Biden grappled repeatedly with the concept of natural law and its relation to constitutional law. The educational benefits, however, cannot be said to have been great, or even modest. Most commentators thought the subject remained “murky.”
The sudden popularity of so arcane and elusive a topic was due to Thomas’ past writing that justices could use natural law to alter the Constitution. It was hoped by some and feared by others that this meant he would vote to remake the Constitution in a conservative direction. Liberal professors and commentators at once feigned hysteria at the thought that a justice might invoke extra-constitutional principles. The anathema “out of the mainstream” was once more solemnly intoned. This, from people who pronounced Justices William Brennan and Thurgood Marshall “great” precisely because they repeatedly departed from any conceivable meaning of the historic Constitution, was a bit hard to take. Nevertheless, their hypocrisy aside, the liberals have a point.
Now that there is reason to hope for the imminent demise of left-liberal activism by the Supreme Court, we must ask what our real objection was to the era that seems to be passing. Did we think that the illegitimacy of the Court’s performance lay in its liberalism or in its activism, its politics or its contempt for law? Having endured for half a century a Court that seized authority not confided to it to lay down as unalterable law a liberal social agenda nowhere to be found in the actual Constitution of the United States, conservatives must decide whether they want a Court that behaves in the same way but in the service of their agenda.
These thoughts are prompted by proposals that the Court should strike down, on the basis of natural law, statutes that contravene nothing in the Constitution. That idea is more popular with conservatives than I had supposed. There is a growing literature, but Hadley Arkes’ recent book. Beyond the Constitution (Princeton), and articles by Russell Hittinger and William Bentley Ball* may provide a representative sample. All three take me to task for excluding natural law as a source of new principles in constitutional adjudication.
“Natural law.” The words have an attractive, even a seductive, resonance. They refer to principles about ultimate right and wrong that transcend particular nations and cultures and are true for all people at all times. Most of us feel intuitively that natural law exists, though we differ, both as to its source and its content. For some, it is ordained by God; for others, it arises from the nature of human beings, even if we are evolutionary accidents; or it may simply express the requirements for anything recognizable as a society. Whatever its source, natural law’s content is discovered by reason.
In contrast, “cultural relativism,” which Professor Arkes equates with legal positivism, holds that there are “no moral truths which hold their validity across cultures . . . . [So that statutes or constitutional provisions] have the standing of law only because they are posited’ or set down by the authorities in any country.” Arkes appears to think legal positivism implies cultural or moral relativism. But of course, on his own statement, that is not so. It is quite possible, indeed quite sensible, to think that there are moral truths but that statutes and constitutions have standing as law, law to be applied by judges and enforced by the police, only because the authorities have said so.
Given the general tendency to confuse the two, it is important to understand the limited sense in which natural law or moral philosophy is useful, indeed indispensable, to constitutional adjudication, and the larger, more free-hand sense in which it is pernicious.
Arkes is particularly valuable in his exploration of the limited use of philosophy as he discusses the moral principles that necessarily underlie many of the most important constitutional decisions. One wishes that more of our jurists would take to heart his demonstration that “the various clauses of the Constitution and the Bill of Rights can be established, in their meaning, only by attaching them to the properties of a moral argument. And when we do that, we find ourselves tracing these clauses back to the structure of moral understanding that must lie behind the text of the Constitution.” The Constitution, in some of its most important provisions, is quite general, not meant to be taken in full literalness, and therefore dangerous in the hands of those who do not interpret such provisions in the light of the principles that underlie and animate them.
The point is easily illustrated. The First Amendment states that “Congress shall make no law . . . abridging the freedom of speech.” The words sound absolute. As Justice Black was fond of saying, “no law means no law”; there are no exceptions. The Court has expanded “speech” to mean “expression” so that it would appear that government may inhibit no expressive conduct. This, of course, is nonsense, and not even Justice Black ever took such a position. When there was danger that speech might provoke violence, for example. Black would find that the speech could be suppressed on the ground that it was “brigaded” with action.
But if the First Amendment is not an absolute, how are judges to know which speech is protected and which is not? By discerning the principle that underlies the speech clause, Arkes responds, and that, of course, is far wiser than proceeding by slogans or verbal formulas applied mechanically. It is a needed admonition and one I agree with. In arguing that moral philosophy should not be used to place in the Constitution what is not already there, I have been careful to say that I did not “mean that moral philosophy is alien to law and must be shunned in adjudication, but I do mean that it is valuable only at the retail level and disastrous at the wholesale. Moral reasoning can make judges aware of complexities and of the likenesses and dissimilarities of situations, all of which is essential in applying the ratifiers’ principles to new situations . . . . The role it has to play is assisting judges in the continuing task of deciding whether a new case is inside or outside an old principle.”
That much is common ground, and it is to be wished that Professor Arkes had stopped with that claim and illustrated the folly of ignoring it more copiously. Had the Supreme Court thought in the terms he suggests, it seems likely, for example, that the flag-burning cases would have come out differently. Certainly, eight justices could not have concluded that the First Amendment was relevant to nude dancing in the Kitty Kat Lounge. If they had been forced by Arkes to articulate their principle, it would have been entertaining to read the explanation of what idea was being expressed by the young ladies in question.
It is Professor Arkes’ larger claims for a natural law constitutional jurisprudence”claims advanced by Professor Hittinger and Mr. Ball as well”that, it seems to me, land the whole enterprise in trouble. Arkes contends that moral reasoning not only illuminates the proper reach of existing constitutional principles but may properly be employed by judges to create new constitutional principles. A natural law judge would make positive laws out of his own perception of universal moral principles. Those moral postulates would then become just as binding on the polity as the written law of the Constitution. That is where we legal positivists get off.
Arkes writes that his object is to restore the connection between morals and law that the Founders and our early jurists understood. This understanding has been destroyed, he believes, by the pestilence of legal positivism, the idea that right and wrong have no existence or meaning apart from the provisions of law. I am among those cited both as holding “an extravagant skepticism toward the very notions of moral truths and natural rights” and as “regard[ing] any appeal to natural rights’”any appeal beyond the text of the Constitution”as a pretext for evading the discipline of the Constitution.” Well, no and yes, in that order. It seems impossible to live any sort of decent life without ideas about moral truth, just as it seems a corruption of the judge’s function to confuse those ideas with the law to be applied.
Arkes praises the elder Justice Harlan for his dissent in Plessy v. Ferguson. The Court majority upheld state legislation requiring that blacks and whites occupy different railroad cars, so long as the physical facilities were equal. What elicits Arkes’ approval is Harlan’s suggestion that, the post-Civil War amendments aside, segregation could be condemned on the basis of the clauses in the original Constitution of 1787 guaranteeing the states a republican form of government and stating that the Constitution is the supreme law of the land. (It is dangerous to rely upon the insights of the elder Harlan. Holmes provided a tolerably accurate assessment when he said that he never troubled himself when that great man shied since Harlan’s mind was a powerful vise, the jaws of which could not be gotten within two inches of each other.)
If there can be imported into the guarantee of a republican form of government a moral content to condemn segregation, it is difficult to understand why the same moral reasoning would not have enabled the pre-Civil War Court to end slavery. Here moral reasoning is used not to explicate provisions of the Constitution but to transform them. The difficulty is that the existence of slavery under state law was acknowledged by the original Constitution. The idea that the same Constitution could be used to end the institution is similar to the argument, favored by Justices Brennan and Marshall, that the death penalty violates the Constitution despite the fact that the document explicitly assumes that punishment’s availability. It is difficult to justify a reading of the Constitution that denies what it says. Much the same problem arises when Arkes argues that certain principles of the Bill of Rights essential to the idea of law could have been applied to the states even though the Bill of Rights was clearly intended only to bind the federal government.
Hittinger assures us that “natural law reasoning is unavoidable” for three reasons. First, “the framers and ratifiers of the Bill of Rights intended at least some of the amendments to secure natural rights.” Second, judicial review under the Constitution makes possible the entry of natural law theory into litigation. Third, “the Court has repeatedly vindicated individual rights on the basis of extra-textual appeals.” The first reason merely requires the judge to discern what the framers arid ratifiers meant, not to make up new rights the judge regards as “natural.” The second and third are certainly true but do not justify the practice. If natural law reasoning is, in truth, unavoidable in constitutional adjudication, the reason is the temptation of men to use power not legitimately theirs when there is no effective method of resistance. To call what the Court has done, from Dred Scott to Lochner to Roe, “natural law reasoning” is to confer unwarranted dignity on a series of results resting on nothing more than assertion.
Professor Hittinger seems to think that natural law reasoning in deciding cases has safeguards: “Virtually no one holds that natural law can be a tool of legal interpretation completely independent of texts and history.” But what is the relationship of natural law and history to the text when Chief Justice Taney could find in the due process clause a constitutional right to own slaves and Justice Blackmun, with the concurrence of six of Ids colleagues, found in the same clause a right to an abortion? Using a provision as a mere textual peg avoids all limits. Praising a series of justices, Hittinger says that they “did not mean by fundamental rights a blank check that could be filled in by judicial discretion.” Perhaps the check was not entirely blank but the justices did assert the discretion to fill in the names of the payor and payee and the amount. The only thing not blank was the name of the institution to which the claimant must come to cash in his fundamental right”the Supreme Court of the United States.
Ball also believes that judges may properly amend the Constitution with their version of natural law. Thus, the due process clauses of the Fifth and Fourteenth Amendments, which were intended to be guarantees of fair procedures, not of good statutes, should be employed to strike down laws that restrict a “liberty” the judges, and Mr. Ball, would rather not be restricted. There is little argument to support the legitimacy of that practice, other than a mention of some cases whose outcome Ball approves on moral grounds. There are, of course, a great many cases, beginning with Dred Scott, that use the same due process technique to reach results Ball abhors. On purely moral issues, judges are no more competent or trustworthy, as Justice Scalia observed in Cruzan, the Missouri “right to die” case, than “nine people picked at random from the Kansas City telephone directory.” Moral approval of results, an approval that will never be unanimous and will frequently be a minority view, is not of itself sufficient to justify judges in overriding the moral choices of elected legislatures.
The first and most serious problem with natural law judging, therefore, is its dubious morality. To find a principle through the natural law reasoning of judges that makes the Constitution mean something other than, sometimes opposite to, what those who voted to make it law understood themselves to mean can hardly be sound moral argument. The only reason the Constitution exists, and hence that judges have any power to void democratic choices, is that the ratifiers could agree upon certain principles. Some of those principles (the allowance of slavery, for example) were undoubtedly base. Some (freedom of speech and religion) were undoubtedly noble. But whatever their moral status, they were what was agreed to and what persuaded men to vote for them. Had the ratifiers known what a natural law judge might do to their Constitution, the principles would not have been adopted to begin with. To change the principles of the document later, and to do so in the name of the same document, is a piece of trickery hardly worthy to be called moral reasoning.
Indeed, Arkes recognizes as much elsewhere in his argument, for he writes with approval: “During the First Congress, James Madison remarked that the natural right of human beings to be governed only with their consent was an absolute truth.’ Lincoln would later insist, in the same vein, that this doctrine of self-government was absolutely and eternally right.’“ Government by the Constitution that was voted into law is far closer to self-government than government by judges who find principles in the document that the voters never dreamed of and would not have ratified if they had.
One need not be skeptical about the existence of moral truths and natural rights to think that appeals, by judges, to natural rights, appeals beyond the text of the Constitution, are a pretext for evading the discipline of the Constitution. Of course, there are, as Arkes and Ball insist, moral truths beyond the Constitution and moral truths antecedent to the Constitution, or the Constitution would not exist or, if existing, would not be of significantly more interest than the law of decedents’ estates.
The formulation and expression of moral truths as positive law is, in our system of government, a system based on consent, a task confided to the people and their elected representatives. The judge, when he judges, must be, it is his sworn duty to be, a legal positivist. When he acts as a citizen, he, like all other citizens, must not be a legal positivist, but must seek moral truth. Otherwise, there is no way for anybody to say what the law should be, what should be enacted and what repealed. Or, at least, there would be no way other than to express one’s personal interests, which no one with a differing interest is likely to find in the least persuasive.
The point is made in Arkes’ discussion of Lincoln’s debate with Douglas about slavery. Lincoln argued that new states and territories ought not be allowed to adopt slavery because the institution was wrong. He destroyed Douglas’ argument that the matter should be left to local choice. Indifference to what choice was made necessarily assumed that slavery was neither right nor wrong but only a matter of taste. That, of course, was nonsense if slavery was a moral wrong, as Lincoln, arguing from the principles of the Declaration of Independence, demonstrated that it was. But Lincoln never suggested that the Supreme Court end slavery. If he had, he would have been untrue to his own principles of self-government.
The amendment of the Constitution according to a judge’s perception of moral truth is itself so obviously morally wrong that it seems almost superfluous to add that, in any event, Arkes and Ball would not get the results they want. Ball is quite unrealistic on the point: “But do I not thus argue for the kind of despotic judiciary which gave us Roe v. Wade ? Indeed, not. The remedy for that is not to deprive the judiciary of its power to do right, but to install in it justices who espouse the moral principles of our tradition.” This ignores the fact that, from Dred Scott to Roe, we have signally failed to do so. In any event, the proposal envisions confirmation hearings in which the nominee is required to pledge allegiance to a conservative agenda rather than a liberal one. To accomplish that we need only replace our present senators with senators of whom Mr. Ball approves. We may also have to replace part of the electorate. The prospect of “correct” natural law judging is a chimera.
Arkes seems to share Ball’s optimism, since he assumes that good natural law will drive out the bad. He takes me to task for saying, “There may be a natural law, but we are not agreed upon what it is, and there is no such law that gives definite answers to a judge trying to decide a case.” He responds, “The translation has become familiar: The mere presence of disagreement on matters of moral consequence is taken as proof for the claim that there are no moral truths (or natural law’).” The passage bears no such construction. It is evident that people do disagree and, though there may be natural law, so long as we are unable to convince one another of its content, there will be no agreed-upon moral truths that will give judges definite answers. What we will get, as law binding upon us and impossible to change democratically, is the moral truth of a majority of nine justices. Mr. Arkes may be certain about some moral truths, but if he imagines that he can always persuade five out of nine justices to the same knowledge, he should reflect upon those occasions when, using moral reasoning, he attempted to persuade a faculty meeting of a point that ran counter to the professors’ views. And no matter how long and cogently he argues, Arkes will never convince Justice Blackmun that abortion is not a natural right. This certainty that one possesses such truths and that they can be demonstrated to everyone’s satisfaction reminds me of a brief encounter with Mortimer Adler. He had compared me unfavorably to Justice Blackmun on the ground that I was a legal positivist while Blackmun was a natural law judge. I asked Adler why he thought judges were entitled to enforce the natural law. He said, “It doesn’t take long to learn.”
Since I am tired of explaining to my wife that, contrary to Arkes and Hittinger, I am not a moral skeptic, I am grateful to Mr. Ball for understanding that I have merely been urging moral modesty on judges: “I hope there is no need to stress that Bork rejects neither God nor God’s laws; he simply doesn’t want earthly judges barging into God’s act!” Precisely. When a judge barges into God’s act, he is all too likely to confuse who has the leading role.
A final word should be said on the relation of judging under the Constitution to larger political or ideological issues. Arkes advances the surprising contention that “the cause of conservatism in politics has been attached to positivism’ in the law, and that kind of marriage will be the undoing of political conservatism. For it will insure that, in jurisprudence, conservatism will be brittle and unworkable, and that on matters of moral consequence conservative jurisprudence will have nothing to say.” I wish he had developed that argument further since, as it stands, I do not follow it. There is no apparent reason why the vitality of political conservatism depends upon abandoning a jurisprudence of legal positivism. Political conservatism can strive for conservative legislation and legal positivist judges will faithfully apply it, just as they would apply legislation embodying liberal principles. This is merely the recognition that, in our system of government, it is not judges but the people and their elected representatives who are to make major policy decisions.
There is nothing “brittle” or “unworkable” about that. Conservative jurisprudence, if that is what legal positivism is, will, on matters of moral consequence, say what the American people direct judges to say. The morality of the consequence will be the morality of those who made the Constitution law and those who agree to abide by that law today. Natural law, morality, is the stuff out of which legislation and constitutions are made. Positive law is the application of those legal documents to decide specific controversies in court. This division of labor between the judicial branch and the political branches is a major aspect of the separation of powers, and, far from being the undoing of political conservatism, it is the foundation of the Republic.
Ball makes a somewhat similar point, saying that “however praiseworthy we may find Bork’s criticism of judicial liberalism, his criticism is basically not that of a conservative.” In a way, that is quite true. A number of liberals agree with my view that the judge should be politically neutral. My view of law is conservative only in that what is being conserved is the constitutional design of our government. But Ball means that criticism of law is not conservative unless it proceeds from a natural law perspective, and, in the process, he reads a great many people out of the camp of political conservatism. He approves Russell Kirk’s dictum that there is no conservatism without natural law: “The first canon’ of conservative thought is: belief in a transcendent order, or body of natural law, which rules society as well as conscience.’“ Ball should be wary of that thought. Belief in a transcendent order could as easily, and as misleadingly, be described as the “first canon” of liberal thought. As Hittinger makes clear, much liberal jurisprudence that is unrelated to the Constitution can only be described as natural law. The dictum is also inaccurate for it arbitrarily disqualifies as conservatives people who accept and struggle to preserve every conservative value but who do not believe that such values derive from a transcendent order. It is entirely possible to think that we live in a meaningless universe, to be, if you will, a secular humanist, but also to believe, on essentially empirical grounds, that, given our culture and history, we will be healthier and happier if we live by conservative values. No useful purpose is served by denying that such friends are conservatives. We have few enough allies without thinning the ranks further.
The proper question in judging under the Constitution is not political conservatism or liberalism but the legitimacy of authority: who has the right to decide particular issues? I share many of the views that Arkes, Hittinger, and Ball express, but that does not make the imposition of those views by judges legitimate. Should these gentlemen persuade judges that natural law is their domain, the theorists will find that they have merely given judges rein to lay down their own moral and political predilections as the law of the Constitution. Once that happens, the moral reasoning of the rest of us is made irrelevant.
* Hittinger, “Liberalism and the American Natural Tradition,” 25 Wake Forest Law Review 429 (1990); Ball, “The Tempting of Robert Bork: What’s a Constitution Without Natural Law?” Crisis, June 1990.
Robert H. Bork is author of The Tempting of America and the John M. Olin Scholar in Legal Studies at the American Enterprise Institute.