Prof. Arkes defends “A Better Originalism” against Judge William Pryor’s critique, arguing that the work of natural law doesn’t end with the Constitution: judges must continually consult natural law principles as they apply the law to individual circumstances.
“I’ve counted myself a friend of William Pryor since I encountered him years ago as the young Attorney General in Alabama, thoughtful, on the mark, and quite scholarly. As a nominee to the federal courts, he was courageous. The Judge has been scrupulous and precise in his use of sources, and that is what jolted me with a certain surprise as he loosed his terrible swift sword on those of us who have worked in the vineyard of natural law. Or to switch the figure, he was shooting at the wrong target with friendly fire. He was quite unwarranted in the positions he was imputing to us; and in my own case, it was a critique that rang false as it bore on my own books and writing on the natural law over the past 35 years.”
“First, his account of his adversaries: The writers who joined in the call for ‘A Better Originalism’ had never claimed that the judges should become the sole authoritative branch of the government in expounding the principles of natural justice. Or even the leading branch. We have sought, rather, to revive the understanding held by Lincoln and his party on the rightful authority of the political branches to act as interpreters of the Constitution—to counter, narrow, even overthrow judgments of the Supreme Court. Lincoln and his Attorney General moved immediately to challenge the holding in the Dred Scott case through administrative decisions. And Lincoln’s Congress passed, in 1862, a bill that barred slavery from the western territories. It was a move, that is, to counter and overturn the decision in Dred Scott through an act of ordinary legislation.”
“What is at issue right now in the war among the originalists is that some of us would recover the way in which that first generation of jurists showed the knack of tracing back to those anchoring truths that underlay any of their judgments. They would reach then to those grounding truths that were there before the Constitution. They were the truths that the Founders had drawn upon in establishing a rule of law rather than a despotism. Those truths were there before the Constitution, and they would be there even if there were no Constitution. John Quincy Adams caught the sense of this later when he argued that the right to petition the government was simply implicit in the logic of republican government. It would be there even if it had not been mentioned in the First Amendment; it would be there even if there were no First Amendment; it would be there even if there were no Constitution.”
“What Judge Pryor and our friends on the other side have not quite grasped is this: The work of the natural law was not done once the Constitution is established and certain rights and objects marked off in the Bill of Rights and other clauses. What they have not quite been able to see is that the reasoning of the natural law does not come to end; the judges engage it every day as they work through their practical judgments.”
“Lincoln explained in his First Inaugural Address that the rule of the majority is the only operational form of government by the consent of the governed. And yet, detached from that underlying principle, the rule of the majority had no intrinsic moral significance. Some of our judges do in fact detach it, by insisting that the underlying principle, contained in the Declaration of Independence, was never enacted in the positive law. But detached from that anchoring principle, the rule of the majority would find its justification where Justice Holmes found it: in the bare fact that a majority can overpower the minority. In other words, The Rule of the Strong. It may come as news to some of our friends, but the goodness or badness of the rule of the majority can depend solely on ‘the results’: on whether the majority has governed well or badly as it tries to govern justly.”
Read the full piece here.