Ronald Dworkin once averred that no one wants to be called a natural lawyer. Obviously, Dworkin didn’t know Hadley Arkes, a man who has worked in season and out “to restore the natural law.” His latest offering, Constitutional Illusions and Anchoring Truths: The Touchstone of the Natural Law, is vintage Arkes – an elegant, mature, and spirited account of how human law must have recourse to the natural law. Arkes’s argument is summed up in these words he quotes from the Virginia Declaration of Rights: “no free government, or the blessings of liberty, can be preserved to any people but by a firm adherence to justice, moderation, temperance, frugality, and virtue and by frequent recurrence to first principles.”
As part of his signature insistence on the exigence of appeal to first principles, Arkes has been out to debunk contemporary conservatives’ default legal positivism. In this he has done us a great service.Why?Conservatives’ (justified) fear that liberals on the bench will find in the natural law different contents than conservatives might find there is not itself a sufficient reason for judges to conclude that judges can never legitimately judge on the basis of the natural law. The possibility of a mistake in mathematics is not itself a sufficient reason not to do mathematics.
The analogy to mathematics is misleading, however, because while every rational soul is free to attempt mathematics, not all of us are authorized to make law. In fact, relatively few of us are vested with lawmaking offices. Legislators provide the focal case, and of course for centuries judges have made law behind the veil of “discovering” the common law. Today, administrators in myriad agencies also make law. The point is, different positive law mandates govern the respective lawmaking powers of these three different roles, and taking these assignments of office seriously is, moreover, a necessary entailment of Arkes’s own conviction that government derives its legitimacy from the consent of the governed.
It is here that we can pick up Arkes’s engagement with Justice Antonin Scalia’s notorious unwillingness to consult the natural law directly as part of his judging. Scalia affirms the existence of the natural law, to be sure, but denies that federal judges are authorized to consult it as a part of their decision-making. Arkes’s admiration of Scalia is palpable, yet Arkes is impatient with Scalia’s unwillingness to look beyond the positive law for purposes of reaching judicial judgment: “Scalia simply asserted the opinion of others that the judgment reached in Oregon has not come to be held yet by most other states. That is hardly the answer that the challenge demanded.”
The context for Arkes’s indictment of Scalia is the latter’s dissent from the decision in Gonzales v. Oregon (2006), where the Supreme Court upheld the right of the state of Oregon, through its Death With Dignity Act, to exempt from civil or criminal penalties state-licensed physicians who dispense or prescribe controlled substances in lethal doses upon the request of terminally ill patients. Attorney General John Ashcroft had taken the position that the federal Controlled Substances Act did not mean that assisting suicide was – as the federal statute undeniably required that any use of controlled substances be – for a “legitimate medical purpose.” The Court rejected Ashcroft’s interpretation of the federal statute, and thus allowed the state of Oregon’s statute to control.
Scalia dissented, but not to Arkes’s satisfaction: “[Scalia] sought . . . to steer around the main moral argument: The state of Oregon had come to the judgment that the practice of medicine may be extended to encompass assisted suicide, but that move, he said, ‘does not change the fact that the overwhelming weight of authority (including the 47 States that condemn physician-assisted suicide) confirms that [it has not] yet been so extended.’” According to Arkes, Scalia’s “rather oblique approach” – as opposed to the Justice’s just plain ruling that physician-assisted suicide is not a legitimate medical use – “may have revealed the hesitations of a lawyer and judge who has been diffident, to put it mildly, about the claims of natural law and moral reasoning.” As Arkes goes on to note, though, Scalia reiterated three times that Ashcroft’s interpretation was “the most natural interpretation” (Scalia’s italics) of the federal statute. For Arkes, this comes close to cause for hope: “When Scalia said . . . that Ashcroft’s interpretation was ‘the most natural interpretation,’ I surmise he must have meant the most reasonable, the decision most in accord with the canons of reason.”
Is that surmise sound? Did Scalia believe he was doing something more than just interpreting the statute? Like Arkes, I have written against the conservative refuge in positivism. Where I differ from Arkes, however, is in not assuming that the Court’s role is to construct the meaning of a statute according to “canons of reason.” The legislature had a meaning (what was it?), which it was presumptively the democratically-conferred job of the Attorney General and the courts to ascertain and give legal effect to. Of course, the people might conceivably confer on their judges an authority to bypass the legislators’ meanings and substitute a new (the “moral”) meaning, but I believe the case remains to be made that the American people have in fact given their federal judges that power simpliciter. Which is not to say that judges can morally enforce immoral statutes; recusal and resignation, though, are not the same as the power to substitute new meanings.
Arkes’s book is a must read for anyone concerned about these questions. But a friendly query: has his commendable zeal on behalf of the natural law led him close to doing what Yves Simon once warned against, that is, to install raw and unlayered access to the natural law as a dissolvent of genuine cultural crises?
