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Natural Law, Franckly Speaking

Matthew Franck has been a friend, and I know he was seeking to be generous of spirit in his review of my new book (“The Lawful Truth,” October 2010). But he gives us a version of Carnac the Magnificent: Instead of pronouncing the answers and then announcing the questions, he pronounces his rejoinders without bothering to fill in the grounds of my arguments”the arguments he is affecting to rebut. And so absorbed is he in continuing the argument with my earlier books that he somehow neglects to give an account of the book he is reviewing.

The new book is called Constitutional Illusions and Anchoring Truths , and one reviewer said I was seeking to show “that the anchoring truths of the natural law are accessible to reason and provide the proper lens for seeing beyond the illusions of some of the trickiest cases of constitutional law.” That one sentence tells what the book is about, and it is more than Franck manages to convey in his entire review.

None of the reasoning of the book is recounted in his review. He leaves the impression that I’m offering a kind of singsong morality and jurisprudence”that I simply identify something as a “natural right,” and that is all I need to announce my conclusion. But the judgment on whether there is indeed a natural right engaged in any case, and on whether it has been violated, will depend on the reasoning that would make the law, again in any case, justified or unjustified. All of that has been set forth at length in my book, but there is no sense in the review of the discipline of reasoning that would constrain the judgment of any people in authority who would seek to invoke natural law.

Franck suggests that I would leave judges free to soar off untethered, invoking as law sentiments grand and hazy. But if he recalls, as he suggests he has, my book First Things , the culminating parts dealing with Lincoln should answer his question about how I would limit the reach of judges.

That also would deliver Franck from the illusion that I would have been obliged to approve the decision of the Court in the infamous Dred Scott case on slavery. The answer lies in recalling the prudential compromises made by the framers of the Constitution, who understood the deep wrongness of slavery in the natural law. The question leads back to the natural law, but that is not the answer that Franck finds congenial, and so he is content to remain puzzled.

Franck’s review moves from ordinary mistakes, or acts of misleading, to confusions running quite deep about the very logic of natural rights. He recalls my treatment, in an earlier book, of the classic case of Fletcher v. Peck of 1810: that the law in Georgia would have been wrong even if it hadn’t run afoul of the Contracts Clause of the Constitution, for the law in Georgia had violated an even deeper principle, which did not depend for its validity on its mention in the Constitution.

Franck then intimates to the reader the shocking possibility that I would actually have a judge act on that understanding and strike down the law. But what he curiously omits is that a judge did act upon that understanding , for what I was explaining there was the argument composed by Chief Justice John Marshall when he wrote the opinion that did strike down that law in Georgia in Fletcher v. Peck .

With the famous Lochner case of 1905 dealing with bakers, Franck curiously complains that “the right Arkes describes . . . cannot be found anywhere in the Constitution.” And what right would that be? Surely not a right to be a baker. Justice Peckham and the conservatives of that day were willing to sustain virtually any local law that bore a plausible connection to the public health and safety. But what they detected in this law on bakers was an arbitrary measure that did not in fact protect all people working as bakers.

The kind of arbitrariness at work did not have to be confined to bakers. If a legislature sought today to limit the working hours of young professors, to protect them from carpal tunnel syndrome and the hazards of hours spent at the computer, I think we would find judges writing an opinion strikingly close to the lines of the opinion in the Lochner case. Would Franck argue that the courts could not protect the freedom of young professors”or plumbers or chefs”because the Constitution says nothing about professors, plumbers, or chefs?

The question of racial discrimination might mark another level of Franck’s problem. If we were to find a municipal ordinance that barred people, on the basis of race, from using tennis courts, would we need to find a “right to play tennis” somewhere in the text of the Constitution before a judge could hold that ordinance to be invalid? If there is in fact a right not to suffer racial discrimination under the laws, that right surely must cover all of the instances that may come under the principle.

Franck would be quick to tell us that there is a bar to racial discrimination contained in the Fourteenth Amendment. But that, of course, is not what the Fourteenth Amendment literally says. Franck usually insists on holding strictly to the words in the Constitution and is quite emphatic that the meaning of any passage in the Constitution must be confined to the way in which it was understood by the people who framed it and voted it into law.

But Lyman Trumbull, who steered the Fourteenth Amendment through the Senate, assured his colleagues that nothing in that amendment would threaten those laws in Illinois, as well as Virginia, that barred marriage across racial lines. Without that assurance, the amendment would not likely have passed. Would Franck have the Fourteenth Amendment confined, then, to that meaning?

Franck finds the hand of arbitrariness when judges move beyond the text and begin to use moral reasoning as they try to plumb the deeper principles behind the text, for they would be doing nothing less than”gasp”natural law. But it is not a knock on Lyman Trumbull to say that he might not have realized the fuller implications of the principle he was articulating in the Fourteenth Amendment. Would Franck suggest, then, that the Court, in Loving v. Virginia (1967), did something emphatically wrong when it struck down those laws on miscegenation in Virginia?

That leads, finally, to the deeper confusion. In his book Against the Imperial Judiciary (1996), Franck discusses the case of Van Horne’s Lessee v. Dorrance (1795), where Justice William Paterson proclaimed the defense of rights that were “natural, inherent, and inalienable” and the rights of property “sacred.” Franck denies that the judge was appealing to natural law. He insists that Paterson simply was applying the constitution of Pennsylvania: All of that stuff about rights “natural, inherent, and unalienable” was “borrowed verbatim from that text.”

I submit that this passage is telling, quite beyond the case at hand. No legislator, in that time or ours, could possibly think a legislature the source for determining what is “sacred.” Nor would the logic of “unalienable rights” be there only when those rights were recognized, and set down, by a legislature. I sought to show in Constitutional Illusions and Anchoring Truths that natural rights find their ground in the “laws of reason,” anchored in the law of contradiction.

If Matthew Franck truly understood the logic that underlies “natural right,” he would grasp at once that my right, say, “not to be held blameworthy for an act I was powerless to affect” would have a claim to truth”and a claim to his respect”quite regardless of whether it was ever set down in the text of the Constitution.

We are dealing here with canons of reason that will be there even as statutes and regimes come and go. They command our respect for the sovereign reason that they happen to be compellingly true. For reasons of prudence, we may put restraints on judges in applying those principles, and I’ve made my own case for those restraints. But the main point here is that Franck begins with an inclination to block from his view any recognition of the logic of a “natural right””or of the reasons that explain that logic. Matthew Franck is an estimable fellow, but under the form of writing a review of this book, he simply has delivered the caricature”the cliché”in his head about natural law.

Hadley Arkes
Amherst College
Amherst, Massachusetts

Matthew Franck replies:

As the great twentieth-century philosopher P.G. Wodehouse once said, “In all crises of human affairs there are two broad courses open to a man. He can stay where he is or he can go elsewhere.” I believe I will stay where I am. My friend Hadley Arkes beckons me toward the land of philosopher-judges, but thither I cannot go.

I thank Professor Arkes for mentioning the 1996 book in which I first disagreed with him, for while the volume is still in print, sales have been off lately. I encourage readers to consider therein my account of Justice Paterson’s opinion in the Van Horne’s Lessee case, as well as Chief Justice Marshall’s opinion in Fletcher v. Peck , and determine for themselves which of our accounts of them is better legal history.

Space is at a minimum here, but I cannot forbear to mention that Marshall, in another case, declared that “in our system, the legislature of a state is the supreme power, in all cases where its action is not restrained by the Constitution of the United States.” He did not say, as Arkes does, that legislatures may be restrained by judges inquiring into whether laws are “justified or unjustified” by “deeper principles” of “moral reasoning,” or that laws may be set aside for violating “canons of reason” or the “law of contradiction.”

But suppose Marshall had said such things. Then both he and Arkes would be the objects of my criticism. The argument from authority, even from such august authority, settles nothing.

Unless, of course, the authority is the Constitution and its discernible meaning. In my review I mentioned that Professor Arkes nowhere gives “an account of how the due process clause . . . can be made to do the work it did” in the notorious Lochner case. He still gives no such account. Instead, he sets before us a parade of horribles and asks what injustices we would ask judges to tolerate.

In this exercise Professor Arkes seems to suppose the validity of the following syllogism: Natural law reasoning is capable of determining when a law is just or unjust. The Constitution is our nation’s attempt to give effect to natural law principles of justice. Therefore judges may, in principle (albeit subject to considerations of prudence), overturn any unjust laws. The premises are true, but the conclusion does not follow. Thither, my friend, I cannot go.

Torah and Christianity

I was instructed and edified by Rabbi Meir Y. Soloveichik’s elucidation of the infinity of the Torah (“Torah and Incarnation,” October 2010), but”perhaps understandably, because his Christology is rudimentary”his contrast with the Eucharist limped. Contrary to his assertion that Christians employ “finite means” to bridge God and man, a Christian would hold that if God can become flesh, he can become bread.

Also, Soloveichik contradicts himself on one matter: The transcendence gained by Torah learning is “worldly rather than otherworldly,” yet “Torah learning brings the Jew into God’s eternal time.”

Charles G. Conway
Palm Springs, California

In “Torah and Incarnation,” Rabbi Meir Y. Soloveichik compares the person of Christ and the Eucharistic presence to the Torah, which continually “draws the Jew into engagement with God’s infinite mind.” He addresses the difference between the “Word made flesh” (John 1:14) and the Torah as the “embodiment of God’s will.”

As a Catholic layman, and in partial response, I propose that Platonism does not overly influence the Christian and that we do not “invariably hold that the lower yearns for the higher.” The Christian would simply disagree that Christianity gives us a finite “image of God [that] ceases to be God.” Rather than the infinite becoming finite, according to the rabbi’s understanding, Christ is fully God and fully man.

The Christian agrees that “the higher longs and pines for the lower” but disagrees that this view is the “unique mode of understanding” of Jews. Rather than being a human construction from below, the Incarnation is the complete self-donation in human history of a God who is more than even mind and will combined and who in the Christ event then transcends his own transcendence. The Christian agrees, for this reason, that nothing “would suffice to write down” all that might be interpreted from the God of the Torah”and especially from the self-revelation of a God who by his own nature is mysteriously Trinitarian (John 21:25).

The nexus between the Torah and Christianity remains the question that Christ put to his apostles and to each of us: “And who do you say that I am?” (Mark 8:29).

Peter D. Beaulieu
Shoreline, Washington

Law and Gospel at Toxic U.

Mary Eberstadt’s usual wisdom was not in evidence in your November issue (“Bacchanalia Unbound”) when she endorsed the proposal of 135 university leaders to bring back eighteen as the legal minimum age for consuming alcohol. As someone trying to raise a family near a university, I found the prior situation unbearable: There were loud orgies every Wednesday and Saturday until long after midnight at the fraternity house across the street, and we woke the next morning to a neighborhood strewn with trash and tire marks across lawns. When the drinking age was raised to twenty-one, the parties became quieter, shorter, less frequent, and unaccompanied by reckless driving.

Perhaps the legal-age limitation has had this effect here because of our residual German Lutheranism. That is, while mere illegality may not (as Eberstadt suggests) be enough to stop the evils of excessive alcohol consumption elsewhere, and merely sinful student activities seem not to concern our university leaders (since the 1970s, I have not seen a university-sponsored presentation against extramarital sex or even against abortion), law and gospel together may still have an important practical effect.

Richard Stith
Valparaiso University
Valparaiso, Indiana

First Things’ College Guide

The description of Notre Dame in your special report (“Degrees of Faith: A First Things Survey of America’s Colleges and Universities,” November 2010) is somewhat accurate, except for one ridiculous, false sentence. It is absolutely not true that at Notre Dame “campus ministry has gone whole hog into such things as Hindu prayer, Native American spiritual practices, and Eastern meditation.” That is completely silly, fallacious, groundless. Campus ministry has done no such thing. Whoever told you that? They are either totally ignorant or lying. First Things should know better to responsibly fact-check things like that before putting them into print, since such words can unfairly damage institutions. I write this to help prevent First Things from sliding (further?) into supermarket tabloid journalism, some signs of which I have observed in other recent “coverage” of Notre Dame.

Christian Smith
University of Notre Dame
Notre Dame, Indiana

I can only imagine the challenging task of producing a rankings list of Christian colleges and universities. I was sad to see no mention of Pepperdine University. Pepperdine has been for more than a decade in the top tier of U.S. News & World Report ’s list of “National Universities” rankings, while only a handful of the schools in that top tier are distinctively faith based. Pepperdine, gratefully, is one of them.

Jerry Derloshon
Pepperdine University
Malibu, California

First, I must express my surprise and disappointment that First Things decided to publish a report of this sort. College-rankings issues are now a commonplace in American journalism; their single indisputable benefit is to increase publication sales, but their value is regularly and reasonably disputed both by leaders in higher education and by experts in statistics and measurement. The “fine print” explanation of the survey’s methodology gives me small comfort in this regard.

Second, I must take the strongest exception to the characterization of Valparaiso University. While there is eternal (and characteristically Lutheran) debate over how the Lutheran heritage is best to be preserved and expressed, it is simply not true that the institution’s leadership is “trying hard to undo the school’s Lutheran heritage.” Still more puzzling is the box that rates Valpo first among “Schools in Decline, Filled with Gloom.” In fact, the colleagues and students with whom I interact daily are engaged with and energized by the university’s academic task, by a challenging agenda of service to others, and by efforts to interweave faith and daily life.

George C. Heider
Valparaiso University
Valparaiso, Indiana

Your survey on faith in America’s colleges was very revealing, not only for its content but also for its glaring omissions. I refer specifically to the virtual total disregard for historical black colleges and universities, many of which were established by black and white Methodists, Baptists, Congregationalists, Seventh-Day Adventists, and Presbyterians. Most have been around for more than a century and offer a religious focus as meaningful as that of any colleges on your list.

I’m reminded of the often cited statement “There is more segregation between black and white at 11 o’clock on Sunday morning in America than at any other time.” Your survey perpetuates that sad commentary on American society. Our society must begin to acknowledge that America is not a racial monolith. We don’t really have two worlds. Inclusiveness in this twenty-first century must be our goal.

Aaron Harris
Birmingham, Alabama

I was very surprised and faintly disgusted at the seeming lack of judgment displayed in your recent college issue. As a contributing editor of the Intercollegiate Studies Institute’s College Guide, I am familiar with the factors that contribute to a college’s ratings. While I see no major issues with your ratings system or with your takes on the colleges (they are mostly spot-on as usual), my attention was caught by the “25 Top Schools in America” list. Something must be awry with a system that ranks Princeton, Brigham Young, the University of Chicago, and Franciscan University above such schools as Hillsdale, the University of Dallas, and Grove City.

Your ratings err in assuming that a school’s religious climate affects its worthiness only 10 percent more than the academic and social factors and that the academic and social factors should be given equal weight. And this unbalanced system apparently was not significantly offset by giving a 15 percent subjective input to inside information and opinions from First Things associates, as the U.S. Air Force Academy and Princeton still miraculously appear in your top five schools nationwide.

Many factors must coexist harmoniously in order to create an ideal environment for a liberal type of learning and discovery to take place. You seem to discount the vital way in which proper academic resources, the dynamic of the student body, and the degree to which religion plays a role on campus cross-pollinate to determine the extent to which a school’s environment “liberates” its students in the traditional sense of a liberal education.

For example, how can Wheaton be the number-one school in America when it restricts the free pursuit of truth among its staff (and by extension, its students) by firing a professor for following truth into the Catholic Church? Clearly, the school’s religious core compromises its academic integrity. Is your number-one school more concerned with graduating zealous evangelical Protestants or right-thinking Americans transformed by their engagement of the true, the good, and the beautiful (into whatever religion that may lead them)?

I would never recommend an undergraduate attend half of your twenty-five top schools, and the other half I’d consider grossly mis-compared. The staff of First Things should have more accurately targeted the truly outstanding places for our young people to engage”often for the first time seriously for themselves, and without their parents running interference”truth, beauty, and goodness and become more “liberated” Americans, ready to take their place in our nation.

Alycia Nielsen
Greenville, South Carolina

As a charter subscriber I found your college guide issue a welcome excursion. I was particularly pleased that Christendom College was ranked number two on your “Most Catholic Catholic Schools” list, but I had some trouble finding consistency in the reviews. You warned that Christendom is a small place, but an even smaller college’s size was simply “distinctive.” Only for Christendom is a prohibition on opposite-sex visiting in the dorms “too draconian,” although some other colleges have similar rules.

There were factual errors, such as that Christendom confiscates R-rated movies and searches dorm rooms for contraband, whatever that is. And I was shocked, shocked to learn that there is drinking in out-of-the-way places on campus. I am sure the students who are willing to sit by the Shenandoah River in the snow just to drink are far outnumbered by those who enjoy swimming and boating in it.

Donna F. Bethell
Christendom Educational Corp.
Washington, D.C.

Hearty congratulations to the editorial staff on this remarkable critique of the university situation in the United States. The article by Stanley Hauerwas was the best advice I have ever read for a young Christian entering college, and the article by Mary Eberstadt should be read by every junior in high school who is planning to go to college”and by his or her parents as well.

Watson A. Bowes Jr
University of North Carolina
Chapel Hill, North Carolina

I do have one major complaint with your impressive achievement in surveying the religious realities of the major universities today: St. Louis University was left out. You’ve overlooked one of the premier Catholic universities in the nation”one that is arguably among the four or five most prestigious Catholic universities in America, and a school trying hard to hold onto its religious identity and its embrace of a solid core required of every undergraduate. Our roster of serious Christian thinkers is pretty impressive as well, and the Catholic presence on campus is strong.

Harold K. Bush
Saint Louis University
St. Louis, Missouri

I appreciate and applaud your special report. I was surprised, however, by your total omission of one university that, by any objective application of the criteria used in your survey, should have been among the most highly ranked: The University of the South in Sewanee, Tennessee.

Sewanee is a place where, for example, board meetings begin with a service of worship and where most in the university leadership are active church people. Among its excellent traits I would mention briefly the following: a very high academic rating, including one of the highest percentages of Rhodes Scholars; a consistent ranking as one of the most beautiful college campuses; a clearly proclaimed and unapologetic adherence to its Anglican roots and its continuing religious affiliation; a strong and visible campus ministry; a liberal-arts faculty that is friendly to religious faith and often theologically astute; a school of theology that has a prominent role in the wider university life and administration.

Allan M. Parrent
Chapel Hill, North Carolina

This time you’ve gone and done two radically different things, one really smart and the other really rather silly. The smart thing was allowing a great thinker like Stanley Hauerwas to write a letter to college kids laying out what education is for . The silly thing was thinking you could actually rank colleges for their “religious” and “social” aspects. (I’d even pick a bone with you for thinking you could rate for “academic,” but at least there you have got something like measurable criteria”although even these are subjectively ascertained because lifelong learning can’t be measured any more than one can measure persons.)

I commend you on the perspicacity that engenders a forum like Hauerwas’ brilliant open letter. I cannot commend the trendy pollster mentality that is full of presumption and prejudice. Please do not allow this sort of foolishness to take root among you, even if it sells magazines.

I’ve been teaching for nearly thirty years at one of the institutions you reviewed”and I found it unrecognizable in your pages. I can’t help wondering whether the portraits you painted of them similarly baffled others.

Bruce Herman
Gordon College
Wenham, Massachusetts

As an alumnus of Dartmouth College who lives just minutes from Hanover, New Hampshire, I find that your placement of Dartmouth on the “Schools in Decline, Filled with Gloom” list is flat-out wrong. Under its new president, Dartmouth is more upbeat and optimistic today than in my memory going back fifty-six years. Dartmouth students are very happy when they arrive and even happier with their education and Dartmouth experience when they graduate.

Religion today is more alive and well on campus than ever before. Aquinas House (staffed by Dominican priests), the Roth Jewish Center, Rollins Chapel (with its Muslim prayer room), a Christian magazine published by students, the Tucker Foundation which promotes community service from a spiritual base, and a popular religion department all speak to religion’s visible and vibrant presence on campus.

Joseph “Jay” Davis
Wilder, Vermont

As a Catholic parent of Catholic children enrolled in or graduated from Catholic universities, I believe it is important to understand a school’s Christian foundations and religious commitment, but those are not the only appropriate criteria. While objective information such as that published in the survey can help parents and matriculating students, the gratuitous commentary and snide comments about the schools that did not meet the magazine’s standards for Christian education were completely unnecessary, showed a churlish lack of editorial restraint, and only serve to devalue any useful information presented.

Charles S. Love
Santa Barbara, California

I appreciate the effort and purpose behind your assessment of colleges and universities. I found quite a strange disparity in the rankings, however. It is unclear how Thomas Aquinas College deserves an academic rating of 35.1 while St. John’s College receives only 23.4 (questionably low even without the comparison). St. John’s was the model, without the Catholic orientation, for Thomas Aquinas. It may be that Johnnies are more jaundiced than their counterparts at Thomas Aquinas, and the college’s refusal to participate in surveys may skew the public impression further. Both schools are gems among American colleges, with largely incorruptible and demanding (and equivalent) programs.

David Gibson
Princeton, New Jersey

Your college rankings provide an unfounded assessment of Azusa Pacific University by placing it among colleges on the “Schools in Decline, Filled with Gloom” list. The methodology used to arrive at your conclusion revealed a very subjective approach, and it contradicts the evidence: a burgeoning student body and the vibrant character of our community. At APU students eagerly embrace our Christ-centered mission and purpose and seek out opportunities to change the world for Christ. The Princeton Review named us one of their “Best in the West.” U.S. News & World Report considers our first-year program for undergraduates one of the best in the nation.

The university’s motto, “God First,” remains a core attribute of our identity. Alongside an exemplary Christ-centered education, Azusa Pacific continues to challenge students to understand what it means to be a world citizen and the importance of bringing an authentic faith to serve people where they are.

David S. Peck
Azusa Pacific University
Azusa, California