The significance of James Stoner’s Forum essay on the common law, with the two responses by Hadley Arkes and John McGinnis, is made even clearer by recent events. Commentary on the sad passing of Judge Robert Bork and three reviews of Akhil Amar’s new book, America’s Unwritten Constitution, by Robert George, Jeremy Rabkin, and Lino Graglia provoke further reflections on the place of law and the courts within constitutional government. At the heart of the dispute is the extent to which legal interpretation, including of course constitutional jurisprudence, can exist apart from political philosophy. And this no mere academic dispute raises the profoundest questions of how we might defend and expand our fading freedoms.
Stoner’s concern for common law is an essential historical inquiry but as well part of a broader attempt to recover the meaning of the American founding for both theory and contemporary practice. Professor McGinnis finds troubling the potentially expanding and arbitrary power in the content of contemporary common law, while Professor Arkes would further develop Stoner’s argument, to embrace specific consequences of natural law reasoning. Among them, and the work of other scholars, they bring out major schools of interpretation put forth by conservative legal scholars.
For Stoner, “[A]lbeit indirectly, common law might be said to adopt the law of reason or of nature: not that natural law or unassisted reason could replace statute or custom, but that judges were entrusted to ensure that unreason was confined as narrowly as possible and allowed to expire with the passions that happened to bring it forth.” McGinnis (co-author with Mike Rappaport of the forthcoming Originalism and the Good Constitution) wants to protect the written law and an original understanding of the text and thus fears “the inherent mutability” of the common law. He demands instead “a structure that privileges the text and gives it a generative force, no matter how dense the thicket of precedents.”
In contrast to McGinnis’s fear of replacing the text of the Constitution with arbitrary judicial impulses (including those masquerading under the natural law), Arkes insists that proper judicial judgment rests “not on the persons who endorsed it, or its inclusion in a text, but on the force of the principle [in this instance the law of contradiction] itself” (italics added). That is, “legal axioms claim their respect as laws of reason, quite apart from whether they are in the text of the Constitution.” (Italics added. Cf. Rappaport’s postings such as ”Eliminating the Absurdity in the Vice President’s Impeachment Trial“) As Arkes has often argued, the natural law, which he here identifies with right reason or principle, can best prevent arbitrary and unjust laws from prevailing. We adopt a written Constitution for a reason, one rooted in principles drawn from natural rights and natural law, as one can argue, based on the Constitution’s history.
Here is the battle, as Arkes sees it being lost: “[W]hy do we find some of our conservative jurists so distracted that they rail against the appeal to principles outside the text instead of concentrating their genius on the question at the core of matter—namely, whether those new principles floated by the liberal judges can survive a hard test for their truth?” Was Judge Bork one of these railers or was he, as Arkes has sometimes observed, one of those textualists who was in fact speaking natural law all his life? In a brief appreciation Rappaport brings out the significance of Bork’s jurisprudence: “Bork’s insight was to extend Herbert Wechsler’s requirement that principles be applied neutrally to the requirement that principles be derived neutrally.” Furthermore, “that neutral derivation could only occur if the principle existed in the Constitution.” Graglia fears that a court ruling may be mere “statement of the policy preferences of a majority of the justices.” “New natural law” scholar Robert George sounds close to Graglia when he raises this question about Amar:
Almost everyone agrees that the Constitution includes whatever its text logically requires or more or less clearly implies. More provocative but also persuasive is Amar’s contention that it includes principles inferred from how the written Constitution was enacted. But can constitutional principles, even broadly construed, include some derived from George Washington’s presidency, or Martin Luther King’s “I Have a Dream” speech, as Amar suggests?
But George is not asking rhetorical questions (“Does [“the unwritten constitution”—notice the lower-case “c”] constrain government actors as stringently as principles of the written Constitution do, or less so?”) but real ones, as his writings on natural law indicate. What is meant by whether, as Rappaport put it, “the principle existed in the constitution”?
Further, textualist scholars would allow a place for natural law and other principles as long as they are reflected in the final text. Even natural law scholars would resist what Francis Canavan derided as the “justice amendment”—which would allow judges to seek justice in any constitutional controversy, regardless of what the text says. So are we stuck debating what the meaning of “existed in” is? Yes, but also by keeping an eye on the political situation in which we exist.
Rabkin advises of our current rhetorical and political battle in his review of Amar:
Finally, there is something self-defeating about a conservative constitutionalism that leaves all the structural inferences and extrapolations from core principles—all the “reading between the lines,” as Amar says—to liberal advocates, and simply grumbles about the need for precise documentary warrants from the framers. Once you acknowledge that the Constitution is not simply what courts say it is, you must be able to press arguments and perspectives that compete for public attention and respect. Denying that the Constitution actually has much to say is no way to encourage attention to, and respect for, your constitutional arguments. If the Left alone can appeal to the spirit of the Constitution, the Right will be left with no spirit and a set of constitutional interpretations with no capacity to inspire. [(underscoring added]
The textualists want to preserve a fading legal world of neutral principles from one that had mixed politics and law for partisan advantage. The defenders of natural law and the common law provide the textualists with deeper arguments for their work—and arguments with a political edge as well. The central problem with, e.g., Cass Sunstein is not just that he has politicized jurisprudence. Such work must be seen in all its confusion and injustice, metaphysical as well as legal. Nonpartisanship or “neutral principles” of the sort Judge Bork advocated in his Supreme Court hearings are not the answer to the spirited left. The conception of law that protects people’s rights from arbitrary power requires more than recalling its past majesty and authority, while we live under the Progressive administrative state.