The natural law challenge.

• Author: Arkes, Hadley
• Position: To constitutional interpretative methods

It is never out of season to recall James Wilson's line that the purpose of this Constitution was not to invent new rights, but to secure and enlarge those rights we already had by nature. (1) In radical contrast, Blackstone said that when we enter civil society, we give up that unrestricted set of rights we had in the state of nature, including the "liberty to do mischief." (2) We exchanged them for a diminished set of rights under civil society-call them "civil rights"--which are rendered more secure by the advent of a government that can enforce them. To which Wilson responded: When did we ever have a "liberty to do mischief"? (3) When did we ever have, as Lincoln would say, a "right to do a wrong"? (4) The laws that restrained us from raping and murdering deprived us of nothing we ever had a "right" to do. And so when the question was asked as to what rights we give up in entering into this government, the answer tendered by the Federalists was, "none." As Hamilton said in Federalist No. 84, "Here ... the people surrender nothing." (5) It was not the purpose of this project to give up our natural rights. And so, what sense did it make to attach a codicil, a so-called "bill of rights," reserving against the federal government those rights we did not give up? How could we do that without implying that, in fact, we had given up the corpus of our natural rights in coming under this Constitution?

If we are invoking traditions here, this is the tradition I would claim. I should represent nothing exotic in this assembly; I am here to sound again the things we used to hold. (6)

My friend Dan Robinson remarked that he wanted on his tombstone the inscription "He died without a theory." A former President of Amherst College remarked that "Hadley has a theory of natural law." I remarked that when one says something like that, one imagines a detached observer, watching theories whiz past him, and somehow coming to a judgment on the fragments of those theories he regards as plausible or implausible, true or false. And I said, take me back to the ground on which you make those judgments, and you would be led back to what some of us have regarded as the ground of the natural law in "the laws or canons of reason," or what Blackstone called "the laws of Nature and reason." (7)

That first generation of jurists in this country showed a remarkable knack for tracing their judgments back to those anchoring axioms of the law. Hamilton remarked in Federalist No. 78 that we draw on this rule of construction: Any later statute supersedes an earlier one. (8) But that is not the rule of construction we draw upon for the Constitution, for the Constitution, coming earlier, must be able to override a statute, coming later, or else it loses its function as a control on the legislative power. Hamilton asked how this rule of construction was derived. It was not part, he said, of the positive law--it was not a rule set down in the Constitution. Rather, it ran back, he said, to the "nature and reason and nature of the thing." (9)

We may recall that at the end of Gibbons v. Ogden, as a kind of throwaway line, John Marshall apologized to his readers for spending so much time demonstrating what should stand in the class of an "axiom." (10) He assumed that all of his literate readers understood that, before we can carry out a demonstration, certain axioms had to be in place--like the law of contradiction. They were things that had to be grasped, as the saying went, per se nota as true in themselves. As Hamilton put it in the Federalist No. (31), there are certain "primary truths, or first principles, upon which all subsequent reasonings must depend." (11) They contain, he said, "an internal evidence which antecedent to all reflection or combination commands the assent of the mind." (12)

We grasp the law of contradiction in the same way we grasp that it is senseless, even in the age of "animal rights," to sign contracts with horses and cows or seek the informed consent of our household pets before we authorize surgery on them; but, we continue to think that those beings who can give and understand reasons deserve to be ruled with a rendering of reasons in a regime that elicits their consent. That was the self-evident truth that entailed government by the consent of the governed. Once that point was in place, we had the deepest principle of the American regime: that the security of the American people may not be put in the hands of officers, whether in Westminster or in courts with unelected judges, who bear no direct responsibility to the people whose lives are at stake. That understanding, finding its ground in the natural law, tells us what is deeply wrong with the holding in Boumediene v. Bush, (13) and it also explains just why unelected judges must work under far more restraint, with a more severe discipline, to cabin their judgments. I do not doubt for a moment that Justice Sutherland, in the Belmont case (1937), (14) thought there was something deeply wrong with taking the assets held by Russian nationals in New York and transferring them to Stalin's government. But he also understood that judges should not be interfering with decisions on diplomatic recognition, which went hand in hand with military strategy. To take seriously again the deep principles of natural law is not to license judges to float untethered from the text, or from those principles that command their respect even when those principles are not mentioned in the Constitution.

Part of the genius of the Founding generation is that they showed us how they could reach back to those principles of natural right, or those canons of reason, to explain the coherence of their judgments, even as they worked under these rightful constraints. And so in McCulloch v. Maryland, (15) Marshall noted that the Constitution gives Congress the power to punish only piracies on the seas. (16) And yet if Congress can establish the mails, the power to establish must entail the power to preserve--in this case, to protect the mails against theft. (17) Chief Justice Marshall drew the answer here from the very logic of a law. To say there is a national government is to say that there must be the power to legislate, to govern; and how would a law be binding if it could not be enforced? But several years earlier he offered a lesson even more compelling.

In Fletcher v. Peck, (18) Chief Justice Marshall led the Court in striking down an attempt in Georgia to cancel a grant in lands; he saw this as the equivalent of impairing the obligation of a contract. He could have settled the matter then simply by invoking the Contracts Clause. (19) But instead, he did something far more elegant: He showed how the Contracts Clause could be drawn deductively--with the logical force of a syllogism-from the deeper principle of ex post facto laws, a principle of lawfulness that would have to be part of any regime of law. With that move he could say something truly striking: Georgia, he said, was a great State, part of this American empire. But even if Georgia were a separate, sovereign State, outside the Union--and therefore outside the Constitution and Article One, Section Ten--this law in Georgia would still be wrong, because its wrongness was rooted...