Originalism on the Web (Updated with Professor Arkes' Response)Michael Ramsey

UPDATE:  Professor Arkes has a long and thoughtful response to my review here.

At the Library of Law and Liberty, I have this book review of Hadley Arkes’ Constitutional Illusions and Anchoring Truths: The Touchstone of the Natural Law.

Professor Arkes is one of the nation's greatest scholars of natural law and the Constitution, and as I say in the review his latest work is an extraordinarily rich re-examination of both famous and obscure constitituional cases, very much worth reading.  But I also express some skepticism about the book's larger project, which is principally to establish a counterpoint to what he calls the conservative positivist view of constitutional law represented by originalists such as Robert Bork and Justice Scalia.  Here is a key passage from the book, highlighted in the review:

[C]onservatives find a more prudent and secure ground to the law by fastening on the positive law of the Constitution.  But that move, offered in the name of prudence, incorporates … the fallacy of presuming that the presence of disagreement, on matters of interpretation, marks the absence of truth.  In the law, as anywhere else, the fact that any idea has been misused, or used wrongly, does not itself prove that the idea itself is untrue.  The array of opinions on “natural right,” the proliferation of new, extravagant claims of rights, cannot itself prove that there is no such thing as “natural right.”  The very notion of a misuse implies its own, apt remedy: For it implies that one can understand, in the first place, the difference between a misuse, or a wrongful use, and a rightful use… The remedy lies then mainly in sharpening our sense of how we have made those discriminations.  But for the conservative lawyer, the prudential backing away from natural law produces … a backing away precisely from that confidence in reason itself as the ground of moral judgment.

My response, in part:

I think Arkes is mistaken, in the passage quoted earlier, if he means to say that conservative positivists like Scalia doubt moral truth.  What Scalia doubts is judges’ superior ability to find and apply moral truth.  ...  The practical question for adjudication is this: are we better off with judges pursuing (as best they can) their idea of natural law, and imposing it on the rest of us?  Or are we better off with judges following (as best they can) the commands of positive law – law that, in a democracy, reflects (to some extent and subject to substantial caveats) the collective moral judgment of the people?  

Arkes does not really grapple with this question because he perceives the central issue to be whether there are moral truths.  But one might think there are, yet also doubt that a small group of elite lawyers, acting in the artificially narrow confines of specific lawsuits, with limited access to and feedback from the wider world, are well situated to find them.  That, I think, is Scalia’s competing position.