Justices Gorsuch and Kavanaugh seem to be diverging on essential questions for modern originalism.
I’m quite grateful to Michael Ramsey for his engagement with the arguments in my book, Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law. I appreciate, of course, his praise of the parts that alone, he says, would be “worth the purchase price of the book”—the parts on those landmark cases of Near v. Minnesota, the Pentagon Papers and the Snepp case—perhaps with the iconic case of Bob Jones University thrown in. But I’d record a special gratitude for a move of his that has become regrettably rare in the review of books: a willingness to cite extended passages from the work itself so that the voice of the writer might be heard through the review.
Prof. Ramsey and I also share a notable friend, Antonin Scalia, who has figured notably in both of our lives in our writing on the law. In my own case, I came to know the man who would become Justice Scalia in the spring of 1977 when he had recently left the Department of Justice. From the time that my friend joined the Supreme Court in 1986, no one has spoken my mind more often or more powerfully, on the matters of gravest consequence. But Prof. Ramsey takes his first, gentle turn from things exactly right when he says that I’ve worked “hard” to “distance” myself from the jural works of my friend. The issue of natural law presents the hard question of those grounds in the “laws of reason” that anchor our judgments and measure the coherence of the law we are shaping. I think that my friend, that notable jurist, has been firmly anchored himself in those “laws of reason”—it would be hard to find a better logician on the Court. And yet, in the turns he has taken to avoid a distinct moral ground of his judgments—turns that probably reflect his aversion to making any appeals to natural law—the distance has naturally opened between us. It has taken, then, no “work” especially “hard” to establish that distance. But it may be useful to track some of differences that come along as we mark that distance. I can’t take the space here, of course, to do all of that—Prof Ramsey might join me in directing readers to my book for that expedition. But let me just try to form into a string the problems that Prof. Ramsey offers in his review.
In his opinion in the Heller case from the District of Columbia, on the Second Amendment, Justice Scalia argued for the right of persons, not merely militias, to keep and bear arms. In a conversation a while back I noted that he had invoked Blackstone and James Wilson to appeal to a right to “self-preservation.” I assumed that he had meant the right of an innocent person to fend off an unjustified assault. He assented; that was his meaning. But as I pointed out, and as he well knew, those words were not contained in the Second Amendment. The question would arise then: Was he appealing to a deep principle that did not depend for its validity on being mentioned in the text of the Constitution? Or was he saying: James Wilson and Blackstone had expressed that principle, and many people, at the time of the Founding, read them? In the first instance, we would be running back to the moral reasoning behind the text, the reasoning not spelled out in the text (whisper: we would be doing “natural law”). In the second, we are falling into legislative history: We are asking just how many of those men who had helped to frame, pass and ratify the Second Amendment had read Wilson and Blackstone and incorporated them in their understanding. Even if we could get the answer to that question, it would not be the answer to the question we are asking: namely, is there indeed a deep principle establishing the right of an innocent person to have access to guns or arms for the sake of protecting himself against an unjustified lethal assault?
Without advertising the matter overly much, Justice Scalia has often deployed his reasoning with powerful effect to find, as the ground of his judgment, principles that are there but not in the text. (See, for example, his dissent in Gonzales v. Oregon on the use of drugs in assisting suicide, or his trenchant commentaries on the wrong of racial preferences in cases such as Adarand: “there can be no such thing as a creditor or a debtor race.”) In that vein I’ve been a bit bemused recently to hear the rejoicing (a rejoicing I’ve shared) over the decision in the Hosanna-Tabor case. Friends of mine have proclaimed the grand news that the right of a religious group to install or remove its own ministers, faithful to its own principles, is now “firmly embedded in the First Amendment.” Really? Where in the First Amendment can it be found? Indeed it may be there, but it is there only because of the reasoning that people seem to be sure puts it there. When Prof. Ramsey falls back on a reliance on the positive law of the Constitution, I’d just raise the alert to him: Are you sure that your reliance on the positive law of the Constitution does not persistently go hand in hand with that moral reasoning, extracting the logic embedded in the text? The more common spectacle is of judges announcing their doubts and their skepticism, while they shed those hesitations and go on seeking, as Scalia has so often done, the principle lying behind the text.
Prof. Ramsey rightly notes that I too, along with Scalia, would seek to understand the Constitution as it was understood by those men, gifted and flawed, who wrote it. But I appeal to the framers because they are likely to give us the most luminous account of the rationale for what they had done. They may have it wrong at times, as indeed Hamilton guessed wrong in the Federalist #32 when he assured his readers on two subjects that could not conceivably come within the reach of the federal government: the laws on descent (or inheritance) in the separate States or taxes on land. I consider the writings of the framers the writings to beat. I’ll go with them unless I see something more compelling. But we need to break our illusions on one sovereign point: If we look at something like Hamilton’s memo to George Washington on the National Bank, it is clear that we are dealing with a mind in another register. We cannot suppose that just about anyone among the Founders could have picked up a quill and struck off those lines. My point for Prof Ramsey then is this: If we are drawn to these writings of the framers, it cannot be because we can take any one of them as “representative” of the Founders. We are drawn to them, first and most decisively, because of the power of the reasoning itself. And in the sweep of our studies in law we should not sweep past this elementary point at the very beginning: As Daniel Robinson reminds us, the very grounding of a system of laws in a set of “fundamental laws” or the “first principles” of a “constitution” is itself a move in the Natural Law. It is never a matter of bringing to the Constitution something outside it in the natural law, for the natural has been there, and bound up with the Constitution, from the beginning.
That sense of things may help to put the matter of “originalism” in its proper, more sober frame, and it leads into the problem that might test Scalia’s position most severely. I recalled to my friend that in the arguments in the Senate over the Fourteenth Amendment, Lyman Trumbull had to assure his colleagues that nothing in that proffered Amendment would challenge those laws in Illinois as well as Virginia that barred marriage across racial lines. And it was as clear that, if he couldn’t offer those assurances, there was no way that the Fourteenth Amendment would stand a chance of passing. Well does that mean that the Court should not have taken the case in Loving v. Virginia? That it should have held back from striking down the laws on miscegenation? I put the question to my friend, and he was honest enough to say that he would have to think about it. But I can’t imagine he would finally say that Loving v. Virginia had been improvidently accepted for argument and wrongly decided. My hunch—subject to correction—is that Prof. Ramsey would not make that move either.
But in that case we would put the question: How would he or Justice Scalia make that decision in Loving without appealing to a deeper principle on the wrongness of racial discrimination– even though the implications of that principle had not recognized and accepted at the time? As I’ve pointed in other places, it is no knock on Lyman Trumbull that he didn’t see all of the implications springing from the principles he was articulating in the Fourteenth Amendment. After all the life of moral experience is a life of often discovering the implications of our own principles, principles that have heretofore gone unnoticed.
And yet, that would lead to the further question that I might try on Prof. Ramsey: If he would not renounce Loving v. Virginia, if he would appeal instead to a deep principle here, would he have become now a votary of “the Living Constitution”? Would he be joining Professors Dworkin and Tribe in bringing the Constitution in line with the evolving “sensibilities of the time”? Or would he simply be recognizing a principle that was there all along—perhaps in the way that many of our friends now see that right of religious groups to install or remove their own ministers as a right firmly embedded in the First
Amendment? Firmly embedded, but only recently recognized—and elevated to its proper, high standing. Do we find the Constitution “evolving” by bringing forth something new, or are we bringing forth what we think was there all the time?
If I’m right in supposing that Prof. Ramsey would have joined the Court in striking down those laws barring interracial marriage; if I’m right that he would have had to appeal to a deep principle not spelled out in the Fourteenth Amendment or the Constitution; would it really follow, then, that he would be doing exactly what Ronald Dworkin, Laurence Tribe, and Jack Balkin are doing when they appeal to what they think is a deep principle in the Fourteenth Amendment to strike down laws that bar same-sex marriage? Or could it be that one of us has it right and the other wrong? That one set of reasons is in fact better, more defensible, than the other? If the response is, we can none of us be sure, well that is the way in which conservatives, of late, back themselves into a kind of soft relativism. They express in different ways that they are unsure that reason has “truths” to discern.
Let’s see again on this matter of marriage: I’m separated from that worthy trio of Dworkin, Tribe and Balkin by nothing less than my understanding of (a) the meaning of sexuality itself, (b) the natural telos or purpose of sex (the purpose reflected in the very existence of male and female), and (c) the purpose of the laws of marriage as a framework of commitment to envelop the begetting and nurturing of children. In the jural world of Prof. Ramsey, have those kinds of differences simply dissolved once one makes the move, made by Scalia no less than others, to seek the principle behind the Fourteenth Amendment and the Equal Protection Clause?
Many black people have been offended by the willingness to put on the same plane the banning of marriage by race and the insistence on confining marriage to one man and one woman. No doubt many people will disagree with the reasons they offer, but the people resisting this move in the courts have reasons to treat marriage as a relation indifferent to race but hardly indifferent to the sex of the couple. Their reasons are not trivial, and they are precisely the kinds of reasons on which the holding will eventually turn in the Supreme Court. They are not mere flights of imagination or thoughts too woolly to enter into the reasoning of the law. They are very stuff of the moral reasoning central to the law, and necessary to any judgment about a decision that is finally justified or unjustified.
As Prof. Ramsey knows I’ve sought to show, in my own writings, that the task of judging cases will persistently draw us back to those principles that were there before the text was made. There is no practicable way for judges to avoid that moral reasoning while they purport to render judgments. The alternative is a spiral of contradiction: The judges are told to avoid moral reasoning because they cannot be sure that they are reasoning rightly. But then how do they know that they have reasoned rightly about that principle asserting, as an anchoring point, their incapacity to reason rightly? Prof. Ramsey suggests that the question is, “are we better off” when judges take seriously this need to engage in moral reasoning? Is he pointing to some standard of utility?: “Act utility,” “Rule utility”–or some other standard? What is the principle? And where in the Constitution does he find it?
It may only be because questions of this kind, running to the root, have gone largely unexamined, that Prof. Ramsey could come through my book and still say: “Arkes’s approach does not seem to have a valence for or against liberty.” Could I really have failed to make it clear, even to a reader as careful and generous as Prof. Ramsey?: The whole notion of law arises, as Aristotle taught, from the nature of one kind of creature, a being who can give and understand reasons over matters of right and wrong. As Lincoln remarked on those slaves who had the good sense not to throw in with John Brown: as unschooled as they were, they were creatures who had the competence to reason about their own well-being, and they did not deserved to be annexed to the purposes of other men without their consent. And that is why we could say, with Locke, and the American Founders, that these kinds of beings have a presumptive claim to their “natural liberty”—to all dimensions of their freedom. The burden would have to fall then to the law to justify its measures when it would restrict that liberty, take from people the substance of their earnings, or take the lives of these persons. As some of the Federalists argued, we didn’t need a Bill of Rights in order to put those premises into place in our law. For they were bound up with the very idea of the rule of law; and they would be there even if there were no Bill of Rights, no First or Fourteenth Amendment, indeed no written Constitution.
Men such as Hamilton, James Wilson, John Marshall showed us often how they made their way to those first principles as the ground of their judgments. That kind of reasoning turned out to be necessary in explaining the system of law they had put in place. My simple pitch has been that we would restore a certain moral coherence to our law by the simple art of recovering what these men had taught in their elegant writings. And so Prof Ramsey and I may truly say together, as Lincoln said during our gravest crisis, that the Founders understood our situation as well as, or better than, we understand it ourselves.