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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.


Posted on December 4, 2012 in Writings

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”).

Posted on December 4, 2012 in Writings

Is Religious Freedom A "Natural Right"?
The recent, growing crisis over the mandates from HHS has sparked the most acute sense of danger over “religious freedom.”   But on the main moral questions, on abortion, contraception, and the “life issues,” the Catholic Church has cast its argument with the moral reasoning of natural law;  it has not appealed to revelation and faith.  That sets up a problem not widely noticed: if the government rejects the moral reasoning of the Church, how is it denying “religious freedom”? Hadley Arkes explores the problem of conceiving religious freedom as “natural right.”  And as we venture further into the problem, we run up against the question that people seem anxious to avoid: whether judges can explain any longer just how they identify the “religious,” and whether they can avoid casting judgments on the claims to religion that are legitimate or illegitimate, plausible or spurious.

Posted on October 24, 2012 in Writings

"Ironies of Compelled Speech: On the Advertising of Cigarettes—and Abortions."
We are waiting, along with everyone else, for the presidential campaign to start touching the issues that run to the core of things.  We have been convinced, along with many others, that the current election marks a real turning point for the character of the regime in America, and we have argued in these postings that the question of Obamacare marks the strategic center of that problem.   The extension of political control over medicine will bring, among other things, a scheme of rationing that will bar many people from the medical treatment they think necessary to preserve their own lives.  In the political economy of Obama, the extension of regulations over business generates a powerful incentive for businesses to buy waivers from the rules by making their contributions, and establishing their connections, to the party in power.  Banks have already come under sanction for a pattern of lending that yields racially disparate results, even when they follow rules of prudence in lending.   And the legal threat hanging over banks can be readily applied to other businesses.  Step by step, we would be moving into a politically managed and directed economy.
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. 

Posted on September 21, 2012 in Writings

Hadley Arkes Talks With Richard Reinsch About Right Reason and Constitutional Law

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.

Posted on July 9, 2012 in Writings

The Dog That Didn’t Bark: Another Bad Day for Conservative Jurisprudence
Hadley Arkes recalls Mark Twain’s line on Wagner’s music, that “it wasn’t as bad as it sounds.”  But the decision of the Court on Obamacare on Thursday was even worse than it sounded.   To say that a “mandate” was rather a “tax” was not, as the Chief Justice remarked, as matter merely of “labels.” A politics that takes seriously “the consent of the governed” does not treat a trivial matter the way in which a measure was “justified” to the public and secured its passage.   But Thursday was also another bad day in the annals of “conservative jurisprudence.”  The Dog that Didn’t Bark was “Originalism.” Justice Scalia has famously said that the strength of originalism is found in the cardinal fact that anything else makes little sense.  Whether that is true or not, it may also be the case that, when the chips are down, originalism seems to make little difference.

Posted on June 29, 2012 in Writings

A Dissection of the ObamaCare Ruling
Here, John Eastman dissects the problems—historical, legal, and rational—with the majority opinion Chief Justice Roberts issued on the ObamaCare case yesterday.

Posted on June 28, 2012 in Writings

John Roberts, Legal Realist-in Chief? Or Protector of the Court?
Here, David Forte, Fellow at the Claremont Institute's Center for the Jurisprudence of Natural Law, analyzes yesterday's decision in the historical context of the progressivist and originalist movements in legal doctrine and reasoning, and finds Chief Justice Roberts' opinion wanting.

Posted on June 28, 2012 in Writings

Waiting for Obamacare: The Court Mangles A Decision

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.

Posted on June 22, 2012 in Writings

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.

Posted on May 10, 2012 in Writings

The Hobbesian Temptation for the Law: Justice Kennedy’s Breakaway, Justice Scalia’s Resistance
It was understood by the American Founders that the teaching of Thomas Hobbes, the 17th century English philosopher, was quite at odds with the regime of natural rights they were putting into place.  And yet there has been a persisting Hobbesian temptation over the years:  Both political figures and ordinary people can be found drifting Hobbes’s premises without much awareness.   The late Justice Thurgood Marshall once gave expression to those Hobbesian premises in a dissenting opinion.  But in a decision just two months ago in Lafler v. Cooper, Justice Anthony Kennedy wrote for a majority in planting those Hobbesan premises firmly in a part of our constitutional law.  Justice Scalia mounted a spirited resistance, finding the ground of his argument in the deepest axioms of the law.

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.

Posted on May 8, 2012 in Writings


Posted on April 11, 2012 in Writings

Severability and Obamacare: A Conservative Temptation?

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.

Posted on March 30, 2012 in Writings

"Indecency" in the Arts and the Law
In recent decades, many private citizens and judges alike have hesitated to declare traditionally offensive speech or art as "indecent," instead legitimizing vulgarity through appeals to relativism. In his latest essay for Right Reason, Hadley Arkes uses the recent oral arguments in FCC v. Fox Television Stations as an opportunity to expose the flawed reasoning of such relativism, and insists on the judicial defense of common decency as an undertaking necessary to democracy.

Posted on March 15, 2012 in Writings

Hadley Arkes Responds

Posted on March 13, 2012 in Writings

Hadley Arkes and Michael Ramsey Discuss Natural Law and the Constitution

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.

Posted on March 13, 2012 in Writings

A Conversation with Hadley Arkes

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.

Posted on March 5, 2012 in Writings

Turning the Tables on Obamacare: Returning to Natural Rights

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.

Posted on February 29, 2012 in Writings

A Natural Law Manifesto

Posted on February 6, 2012 in Writings

The Mission and Purpose of the Claremont Institute's Natural Law Project

Posted on February 6, 2012 in Writings