In a review of Drakeman’s The Hollow Core of Constitutional Theory: Why We Need the Framers, Prof. Hadley Arkes contends that, when debating moral issues such as abortion and freedom of religion, judges should look beyond the text of the Constitution to the principles underpinning it. The Framers themselves disagreed on constitutional interpretation, and it’s difficult to isolate their intentions except by delving into the moral arguments behind their word choice. Without these moral principles, judges fall into historicism and accept the unacceptable on the basis of precedent. Arkes, therefore, argues with Drakeman for a difficult but worthwhile mode of jurisprudence: one which follows Hamilton, Marshall, and Wilson back to the anchoring truths of natural law.
“[Conservatives] complain that the Supreme Court has invented new rights not contained in the text or understanding of the Constitution. That has been a convenient way of steering around the question, say, of whether the state of Texas has ample grounds, woven of embryology and principled reasoning, that would justify the laws that cast protections on the child in the womb; the laws that are being challenged now in Dobbs v. Jackson Women’s Health Organization. The leading figures in conservative jurisprudence over the past 40 years have preferred to steer around those questions of moral substance at the heart of these cases, for the moral argument is too contentious and the conservatives despair at reaching answers to moral questions. They have been content to rely instead on the mantra that abortion is mentioned nowhere in the Constitution.”
“But in the whirl of theories, Drakeman finds his way along the path of Scalia to the central truth of the matter: we find the meaning of statutes and constitutional provisions as we realize that the language set down in these instruments reflected the give and take of framers who were trying to arrive at a meaning that most of them would find clear and justified. Drakeman puts it in this way: ‘Even the Framers who voted against a provision would know what problem it was meant to solve, and why the clause was designed to solve it in that particular fashion, even though they would have preferred to solve it another way.’ The framers, he said, added provisions to the Constitution ‘for reasons, and those reasons provide an essential foundation not only for interpreters to identify the original meaning of the text’ (emphasis added), but on whether those reasons may still bear on the unforeseeable circumstances of our own day.”
“And yet, even if that understanding of the Establishment Clause can be retrieved, it would do little to solve the deeper problem of religion and the law: that even among the defenders of religious freedom there is heated disagreement on what constitutes ‘religion.’”
“This confusion cannot rightly linger. It is a moral question on the freedom of groups claiming, rightfully or wrongfully, the name of ‘religion.’ And as a moral question it must be governed then by a standard of moral judgment. But as Drakeman points out, many writers and judges have cited the drift of convention, as words shift their meaning over time, along with the moral sense of things. Practices once regarded as unthinkable (such as the marriage of two men) are now regarded as plausible and legitimate. But are these accomplished jurists not aware that they simply risk backing here into the vice of historicism? Let us suppose that 50 years from now our regime of racial preferences has been preserved and the right to abortion has become further entrenched. Would we be obliged to conclude then that these policies must indeed be constitutional because they have been acquiesced in so long?”
“In other words, no matter how clear we are on the framers’ understanding, the times will keep throwing us back on our common sense and the principles that must ever underlie our judgments on the things that are reasonable, fair, decent, and just. Which is to say, judges would need to fall back, along with everyone else, on the native wit and commonsense reasoning of the natural law. But with this telling difference: the judges—the products of the best colleges and schools of law— simply don’t take seriously any longer those anchoring truths that formed the ground of the natural law.”
Read the full piece here.