JWI has launched a collaborative partnership for 2021 with the Liberty Fund’s online journal, Law & Liberty. Led by its Director, Richard Reinsch, Law & Liberty has become one of the premier journals on the right for writing on jurisprudence, politics, and culture. Prof. Hadley Arkes opened our first symposium in February 2021 with “Letter to a Noble Lawyer.” Prof. Gerard V. Bradley, JWI Senior Scholar and Trustee and professor of law at the University of Notre Dame, responds below.
The “Noble Lawyer” in Hadley Arkes’ recent essay worries about “giving free rein to life tenured Justices to apply their own understanding of natural law.” Hadley’s correspondent captures here the concern at the heart of contemporary conservative constitutionalism. But the expression falters. “Free rein” is too strong: who, after all, enjoys such sovereign freedom in any job? It is rather a question about judges resorting to “natural law” when it is necessary in order to interpret and apply the constitutional text, especially the guarantees of human rights sprinkled throughout it.
“Natural law” is one way to name the object of that recourse. But that term still spooks many constitutional lawyers, who cannot forget the derision heaped upon it by legal luminaries such as Oliver Wendell Holmes (and also by Supreme Court Justice Hugo Black). Why not call it instead, “a sound understanding of genuine human flourishing, and of justice predicated upon that account.” That or something like it is less forbidding than “natural law.” And it comes without the baggage.
The Constitution and “Value Judgments”
When the “Noble Lawyer” refers to “their own understanding,” it is a misdirection. Of course it should be the judge’s “own” best “understanding” of justice—who else’s would it be? But why insinuate at the get-go that it is all a matter of personal opinion and not of truth? If the Supreme Court were to say tomorrow that “every person is entitled to equal justice under law,” would anyone say, “Well, that is just ‘their own understanding’”? No. We would nod in agreement, for we would recognize that the words are true, even though they appear nowhere in the Constitution.
Perhaps “their own understanding”—indeed, maybe the “Noble Lawyer’s” whole expression—is a muffled invitation to recoil at the prospect of a Justice resorting to an unsound norm of natural law. That is a genuine prospect; the reader could supply current examples. But such mistakes are a risk of authorizing anyone to make law for the whole community. Joe Biden has the power to make many such mistakes over the course of his presidency, for he often has the final call. Sometimes, the buck stops at the Court.
Justice Scalia more carefully phrased the central conservative worry in his powerful Casey dissent: whether the Court’s “pronouncement of constitutional law rests primarily on value judgments.” The meaning of “value judgment” in this great Justice’s constitutional conservatism stands in contrast to specifically “legal” reasoning. From Casey: “As long as this Court thought (and the people thought) that we Justices were doing essentially lawyers’ work up here—reading text and discerning our society’s traditional understanding of that text—the public pretty much left us alone. Texts and traditions are facts to study, not convictions to demonstrate about.”
The truth that a human person comes into being at conception is not usefully described as a “value judgment.” It is a philosophical conclusion which follows certainly upon established scientific facts, much like the conclusion that a human person ceases to be—is dead—when all brain function is gone. The Court’s conservatives have nonetheless all shared Scalia’s contrary position. He wrote in Casey that Roe “is bound to be wrong, unless it is correct that the human fetus is in some critical sense merely potentially human. There is of course no way to determine that as a legal matter; it is in fact a value judgment.”
For Justice Scalia and constitutional conservatives generally, the Constitution is silent about abortion, even though the Fourteenth Amendment plainly declares that no state may “deny” to “any person” the “equal protection of the laws” (including the laws against being killed by other persons). Text and tradition belie any putative right to have an abortion, they say, but any affirmative right to life of unborn persons would depend for its enforcement upon a prohibited “value judgment.” For that reason, it is not in the Constitution, either. Thus, the “States may, if they wish, permit abortion-on-demand, but the Constitution does not require them to do so.”
I suppose that what counts as a “value judgment” is itself a “value judgment.”
Conservatives’ aversion to judicial “value judgments” is not limited to abortion. Against assertions that the Framers intended the Eighth Amendment to exclude capital punishment, Justice Scalia (in his 1988 article, “Originalism: The Lesser Evil”) that “one must not only say this but demonstrate it to be so on the basis of some textual or historical evidence.” Just so. But then the Justice made a reductio argument that signaled his opposition to judicial “value judgments,” tout court. Scalia wrote that, if one is “willing simply to posit such an intent for the ‘cruel and unusual punishment’ clause, why not for the due process clause, the equal protection clause, the privileges and immunity clause, etc.?”
Why not, indeed?
The roster of “etceteras” whose content requires some kind of “value judgment” is actually much longer. It includes the rights to “keep and bear arms” and rights against “unreasonable search and seizure,” laws “impairing the obligation of contract,” and “excessive” bail and fines. It includes the guarantees of “just compensation” for government takings and a fair “trial.” “Etcetera” would extend to the meaning of such key constitutional terms as “religion,” “probable cause,” “speech,” “liberty,” and “voluntary” (confessions). This is to leave entirely aside the “value judgments” appearing on the face of countless judge-made constitutional doctrines, tests, and rules—“fair notice”; “neutrality” between “religion” and “non-religion”; ”prurient interest” in sex; “compelling state interest”; “reasonable time, place, and manner regulation”; sundry “balancing” tests, etc.—many of which conservatives do not want to abandon.
So again, why not? Are we to abridge the Constitution, shear off its meaning, edit it down, whenever applying it faithfully calls for a “value judgment”?
Justice Scalia might have figured that multiplying examples would cause readers to blanch. Maybe some will, and with good reason, depending upon what one thinks of the “values” of those who presently occupy the federal bench. But no one’s visceral reaction affects what the text of the Constitution says, or settles what those who made it our fundamental law over 200 years ago understood it to mean.
Natural Law and Textual Meaning
The question contemplated by Hadley Arkes and the “Noble Lawyer” has nothing to do with giving “free rein” to “natural law” or to anything else. We are not talking about that perennial law school chestnut, the 1798 Supreme Court case of Calder v. Bull. There, the Court rightly disdained any power to enforce norms of natural justice extrinsic to the Constitution. The question at hand is whether one can interpret so many constitutional texts (the “etceteras”) in accord with tradition, while scrupulously avoiding “value judgments.”
One modest aid to answering that question is to ask whether conservatives defend their value-abstinence as the best way to actually identify the meaning of the Constitution. Or is it, instead, the answer to another question, the solution to a different problem?
“I take the need for theoretical legitimacy seriously,” Justice Scalia wrote in his 1988 article about originalism, explaining why he approached constitutional law the way that he did. The “main danger in judicial interpretation of the Constitution,” he asserted, is “that the judges will mistake their own predilections for the law.” We have no reason to consider Scalia’s usage to be anything but standard: “predilection” means predisposition, what the Oxford English Dictionary defines as “a preference or liking for something; a proclivity; the fact of having such a liking or preference.” “Predilections” are close to, or the same thing as, what Holmes famously described as a man’s “can’t helps.” Robert Bork expressed the point in still stronger terms in a 1982 National Review essay: “The truth is that the judge who looks outside the Constitution always looks inside himself and nowhere else.” This worry about “legitimacy” pertains to the real substance of judicial review, to the question of whether even judges who think they are enforcing the “law” are actually doing so. Or are they, in fact, enforcing their own “predilections” under the guise of law?
In the same essay, Justice Scalia also expressed a worry about a different sort of “legitimacy.” This one he described as “central.” He thought it was essential to maintain “the perception that the Constitution, though it has an effect superior to other laws, is in its nature the sort of ‘law’ that is the business of the courts—an enactment that has a fixed meaning ascertainable through the usual devices familiar to those learned in the law” [Emphasis added]. This perceived “legitimacy” has to do with what the people think courts do when they engage in constitutional interpretation. Here again is the key passage from Casey, noted above: “As long as this Court thought (and the people thought) that we Justices were doing essentially lawyers’ work up here . . . the public pretty much left us alone”
This temptation to import the judge’s predilections into constitutional adjudication is so strong and pervasive, and threatens the “legitimacy” of judicial review so grievously, that protecting against it is the great desideratum of constitutional conservatism today. This jurisprudence is thus conceived as a remedy, a prophylactic. Its purpose is to inoculate judicial review against the “inevitable tendency of judges to think that the law is what they would like it to be,” the morally normative is to be excluded. The possibility that the Constitution depends for its faithful interpretation upon the willingness of the interpreter to identify moral and metaphysical truths not articulated in it, but which are nevertheless presupposed or called for, is not quite denied. It is superseded by threats of ever-lurking “predilections.”
This way of thinking so single-mindedly protects against getting the Constitution wrong that the aspiration to get it right becomes secondary. The likelihood of getting the Constitution’s value-laden provisions (the “etceteras”) right, disappears. But this is to amputate parts of the Constitution, supposing them to be potential sites of infection by judicial “value judgments.” A huge gap opens up between what the Constitution rightly interpreted might, and probably does, mean and what the judiciary can say that it means, lest its “legitimacy” be imperiled.
Note well: in the preceding paragraphs, the “legitimacy” at issue was not a reference to the adequacy (correctness, soundness, suitability) of an interpretive method to the nature of the text being interpreted—the way one might speak about how to best interpret a work of art or fiction, or of Aristotle or Aquinas or Madison, so as to understand its meaning. In biblical studies, a parallel to conservatives’ “originalism” would be “exegesis”: what did the text mean to its original audience? Scholars fiercely debate questions about the most apt linguistic, archeological, historical, and philosophical tools to bring to that job. But all exegetes agree that they are trying to grasp the original meaning of the biblical text.
Conservatives’ animus towards “value judgments” is not an answer to parallel questions about constitutional exegesis (if you will). They do not defend it as a sound tool for ascertaining old meaning nearly as much as they depend upon it to justify judicial review. It is “legitimacy”—both “theoretical” (that is, substantive) and practical (as a matter of popular acceptance of an often unpopular invalidation of democratically enacted law)—that concerns them. The looming potential for making law according to one’s own biases (or for merely being accused of doing so) is met by the Justices’ insistence that they are, instead, like umpires “calling balls and strikes.”
Were the Constitution being written today, the facts and fears marshaled by constitutional conservatives would rightly feature in any discussion of how much authority to assign to the judiciary. Worries about the progressivism of legal elites, or of wider contemporary moral pluralism (the sitz im leben of a Court mired in the middle of a culture war), and perceptions of popular attitudes toward courts would all rightly figure into writing a new Article III. Certainly, a dramatically reduced role for the Supreme Court in our constitutional system would be on the agenda.
But the Constitution that some think we should have is not the one that we do have.