Judges require Natural Law’s anchoring truths, not solely conservative legal philosophy.

The Supreme Court’s Term: A Reflection on Originalism and Textualism

The end of June brings with it the end of the Supreme Court’s 2022-2023 term, a point during which court-watchers reflect on the high court’s decisions. Recently, conservatives have reflected on the court’s rulings with a feeling of satisfaction, knowing that a majority of originalists and textualists on the bench will keep the court from drifting too far from this country’s Constitution and its laws.

But one conservative scholar has pointed out a potential failure of originalism and textualism. Hadley Arkes, the Edward N. Ney professor of jurisprudence and director of the James Wilson Institute on Natural Rights and the American Founding, explains that conservative judges enamored by originalism and textualism might find themselves abandoning moral reasoning in the process.

“Whether it would not be a gain if every word of moral significance could be banished from the law altogether.”

If we are to be good jurists, judges, and advocates, we must stick to the path of the law — we must stick to the business of predicting what government will tolerate or sanction in particular social circumstances. The morality of acts or omissions, Holmes explains, is a separate question; it is a tangential spur, a byway apt to lead one away from the path of sound jurisprudence.

For over a century, American jurisprudence followed Holmes’ path. We have worked to exorcize substantive morality from the work of the lawyer and judge. While litigants and jurists frequently invoke concepts of procedural morality — i.e., fairness — they have been reluctant to invoke objective moral norms as they litigate and adjudicate. Even in the most fraught culture-war disputes, judges — especially conservatives — are quick to sidestep moral questions in favor of procedural debates or positivist textualism.

Arkes Advises a Course Correction

To all those traveling down Holmes’ path, Arkes displays a “Wrong Way” sign. Arkes argues in his new book that moral reasoning is neither out of bounds nor out of reach for the American jurist. This new volume, Mere Natural Law: Originalism and the Anchoring Truths of the Constitution, presents Arkes’ case against the positivism outlined by Holmes, as well as the shortcomings of the positivist textualism popular among conservative judges.

Mere Natural Law is a collection of essays illustrating a few simple propositions. First, certain moral principles — the “anchoring truths” of natural law — are part of good jurisprudence. Second, judges (even lawyers!) can readily grasp these anchoring truths. Third, the U.S. Constitution presupposes the axiomatic and accessible nature of these truths. And fourth, 20th- and 21st-century American jurisprudence (especially within conservative circles) unnecessarily neglects these anchors.

Once we remind ourselves of the truth of these first principles, Arkes contends, we can step off the path marked off by Holmes — we can turn off the relativistic, positivistic, historicist road to nihilism.

The Fight for Anchoring Truths

Arkes lays out some of the elementary principles of natural law that are foundational to jurisprudence (and Constitutional interpretation) in an easy, conversational style. Using vignettes and anecdotes to color his argument, Arkes contends that certain propositions are fundamental to any just regime and that the Constitution’s framers understood them as such. A few he mentions include:

• The human person, i.e., the creature that law aims at protecting, is constituted of males and females.
• We cannot hold people blameworthy or responsible for acts they were powerless to effect.
• Good is to be done and evil is to be avoided.

According to Arkes, these propositions are axiomatic. Jurists should not ignore them just because they cannot be found in the text of the Constitution or the laws. After all, they serve as the foundation for the Constitution and the laws themselves. By returning to these anchoring truths, Arkes maintains, judges can develop a healthier jurisprudence informed by right reason.

Recovering from Relativism

Another of the book’s highlights is Arkes’ attack on relativistic approaches to freedom of speech and religion. Arkes calls us back to a time when we understood that speech and religion were aimed at truth. Exercises in speech and religion could thus be restricted for sufficient justification if they do not advance that goal. An immoral act does not get a pass simply because it is prescribed by a religion, and harmful, vulgar speech does not get a pass simply because it is speech.

Arkes’ push for substantive morality within freedom of speech and religion jurisprudence will likely unnerve some conservatives. Conservative judges have taken pride in “value-neutral” approaches to questions of law and jurisprudence. This neutrality, they hope, will permit substantive moral debate within democratic and popular avenues and prevent unelected judges from imposing their vision of morality on society writ large. And they know that preventing morals-based restrictions on speech and religion especially matters when the reigning morality is actively hostile to conservatism.

When the morality of progressivism replaces the morality of natural law, subjecting speech and religious freedom to substantive moral requirements is a recipe for the suppression of conservative religion and speech. In a world where moral condemnation of sexual sins in itself is considered a harm; where it is hate speech to claim that physiological facts have more normative value than psychological states; where seeking equality before the law is white supremacy — why should we weaken the few protections we have?

One answer is to note that courts are already invoking moral claims — and even “natural law” — to justify, for example, a natural right to abortion. In other words, leftists invoke substantive (though mistaken) morality in order to support their jurisprudence and achieve their favored policy outcomes.

Lawyers and judges have shown a willingness to venture off Holmes’ positivist, amoral path. Unless they correct course with reference to the anchoring truths that Arkes mentions in his book, American jurisprudence may wander even further from the Constitution and its underlying moral foundation.

If we want to safely steer ourselves back onto the path of prudence and right reason, we need something we can rely on for guidance. Arkes redirects our attention to the anchoring truths at the foundation of law, which we can use (to mix the metaphor) as navigational stars as we correct our course.