Natural Law and Constitutional Law: The Rosenkranz Debate at the Federalist Society - Hadley Arkes and Alex Kozinski
The annual Lawyers' Meeting of the Federalist Society in Washington features a debate at lunch on Saturday (this year, November 17th). The event this year featured a debate/conversation on natural law with Hadley Arkes and Chief Judge Alex Kozinski of the Ninth federal circuit. It was a spirited and engaging exchange between friends, and it ended up drawing a larger audience than the audience drawn the year before to hear Laurence Tribe debating Paul Clement over Obamacare. But we were taken with the remarkably warm reception as Arkes made the case anew for natural law in an audience not exactly primed to be sympathetic to it. We were pleased then by the reports of people who were hearing that case for the first time and coming away with an interest in hearing more.
In attendance at the meeting were several young lawyers who had been John Marshall Fellows this past summer, in seminars with Professors Arkes, Uhlmann and Eastman under the Claremont Institute. One of the Fellows set down for the other John Marshall Fellows this account of the event:
I tend to stare at the audience during these talks and I was really struck by what I saw. Of all the discussions, I never saw an audience more engaged and sitting up at attention. They laughed for the first 4 minutes and then at about that time Hadley finished summarizing his main thesis of natural law - and their eyes...lit up. A large portion of the audience had an "aha" moment, as if Hadley was articulating a notion that they already felt but could not rationalize and he was able to conceptualize it into a usable framework. The rest of the "debate" was not really a debate at all, but practical testing of the theory to explore how to use their new intellectual tool.
Prof. Randy Barnett at the law school at Georgetown posted a report on another website and recommended the video recording. He was kind enough to add a "Warning: Start watching this and you won't be able to stop." We set down for our readers the link to the debate HERE.
Hadley Arkes and John McGinnis Respond to James Stoner's Essay "Why You Can't Understand the Constitution Without the Common Law."
James Stoner has written a fine essay on the Common Law for the Library of Law & Liberty (“Why You Can’t Understand the Constitution Without the Common Law”). Hadley Arkes was asked to do a commentary. The Common Law is often venerated and cited with the authority of tradition (“whereof the memory of man runneth not to the contrary”). But Hadley Arkes draws out more sharply, with Stoner, the grounding of the Common Law in the Natural Law. Some writs, once venerable, have disappeared, and Arkes urges us to consider anew that the Common Law claims its strength with us still, not because its principles are “traditional” but because they may be compellingly true. (“Peeling Back the Common Law”)
We thank Richard Reinsch, the editor of the Library of Law & Liberty for the permission to reprint here the essays by James Stoner, Hadley Arkes, and John McGinnis (“Common Law Constitutionalism: Tradition v. Interpretive Process”).“religious,” and whether they can avoid casting judgments on the claims to religion that are legitimate or illegitimate, plausible or spurious.
In the meantime, the law goes on. And the courts churn out their decisions. Just a few weeks ago, a panel of the U.S. Court of Appeals DC Circuit managed to post a limit to the reach of the government as it sought to compel cigarette companies to post messages and images designed to repel their own customers. One of the pictures showed a man smoking through the tracheotomy hole on his throat. The public can be grateful for being spared these displays, and yet the path of argument for the court may give pause to conservatives. The reasoning of the court ran uncomfortably parallel to the arguments used in resisting tests in employment when they create racial disparities. But along the way, Hadley Arkes thinks the case illuminates points that should have a deeper interest for conservatives: The language of “strict scrutiny,” intermediate scrutiny, “rational relation” would mark off a scale making little sense to philosophers or logicians. The scheme makes sense mainly to the judges who have invented these gradations—and the lawyers who must speak with the language given to them by the judges. And when conservative judges, moving in these grooves, begin themselves to speak of the interests that are more or less “compelling,” they are pronouncing judgments that simply do not spring from the kit of principles available to judges.
In a recent interview with Richard Reinsch at the Law and Liberty Forum blog, Hadley Arkes discussed interpreting the Constitution in light of the natural law. Listen and download it here.
There was high interest last January, in a packed courtroom, as the Supreme Court heard arguments on the standards of "indecency" that were being applied to the broadcast industry by the Federal Communications Commission. The questions ran to the core and they were enduring: Did the law have access to the standards of judgment that could justify barring certain words or images as just too gross or vulgar — as material not fit to be shaping the sensibility of the public? But as the Court counts down to Obamacare, it has kicked the can down the road: It has disposed of this case of "indecency" and the law by putting off the major questions of the First Amendment for another day. The Court invoked instead a concern for "due process" and a "fair warning" to the networks as to what the law was forbidding. But did the Court avoid trouble here with the kind of reasoning that may embarrass the urbane? Hadley Arkes explores the reasoning and mind of Justice Kennedy.
The Hobbesian Temptation in the Law Part II: Justice Kennedy’s Breakaway, Justice Scalia’s Resistance
In the first part of this essay, on The Hobbesian Temptation in the Law, Hadley Arkes sought to show how ordinary people and public figures have fallen into Hobbesan premises over the years, and just what it sounded like when Thurgood Marshall sought to install those premises in our law. In this second part, "Justice Kennedy's Breakway, Justice Scalia's Resistance," he shows the way in which Justice Kennedy has succeeded now in planting Hobbesian premises in a critical part of our law-and the ground of the resistance offered by Justice Scalia.
This is a two-part essay. In Part 1, below, Hadley Arkes recalls just how ordinary people and public figures have fallen into Hobbesian premises over the years, and just what it sounded like when Thurgood Marshall sought to install those premises in our law. In Part 2, running tomorrow, Arkes will show the way in which Justice Kennedy has succeeded now, where an earlier liberal bloc failed--and the ground of the resistance offered by Justice Scalia.
Drawing upon oral arguments at the Supreme Court this week, Hadley Arkes raises the possibility of a real temptation to the conservative side to let the mandate be "severed"—to let it be separated from the package of Obamacare. The possibilities may be delicious—but sobering.
We re-post here an illuminating exhcange between law professor Michael Ramsey (USD) and Hadley Arkes that followed Prof. Ramsey's review of Constitutional Illusions and Anchoring Truths. The exchange originally appeared at Liberty Fund's Library of Law and Liberty.
The Center for the Jurisprudence of Natural Law's Managing Director Seth Leibsohn speaks with Hadley Arkes about the natural law case against Obamacare on Bill Bennett's Morning in America. To listen, click HERE.
In the inaugural entry for Right Reason, Hadley Arkes argues that the only effective response to Obama's Patient Protection and Affordable Care Act is a return to first principles—dare we say it, to arguments about the nature of government, rights, and the law.