"Anchors Aweigh" (reviewing Hadley Arkes, "Mere Natural Law")

I have review with that title that is both appreciative and critical of Professor Hadley Arkes' book, Mere Natural Law: Originalism and the Anchoring Truths of the Constitution, in this month's issue of First Things. A bit:

C.S. Lewis’s Mere Christianity famously begins with vignettes of ordinary experience. People of all ages and levels of education, Lewis observes, often say things like: “How’d you like it if anyone did the same to you?” “That’s my seat, I was there first,” “Leave him alone, he isn’t doing you any harm,” “Why should you shove in first?” “Give me a bit of your orange, I gave you a bit of mine,” “Come on, you promised.” This was how Lewis introduced his readers to the natural law. Our shared moral responses in cases like these, he argued, are shaped by a universal standard of right behavior. Nobody, or almost nobody, says, “To hell with your standard”; they instead try to show that their behavior in fact conforms to it. Thus did Lewis guide his audience up the Christian mountain by the gradual path of concrete common life before ascending to more difficult theological heights.

In Mere Natural Law: Originalism and the Anchoring Truths of the Constitution, Hadley Arkes adapts Lewis’s title and method to the natural law constitutionalism that he has developed over a lifetime of scholarship and erudition. The thread running through works such as First Things (1986, four years before the founding of this journal), Beyond the Constitution (1990), The Return of George Sutherland (1994), Natural Rights and the Right to Choose (2004), Constitutional Illusions and Anchoring Truths (2006), and others, is that the Constitution cannot be understood apart from the moral principles of the natural law that grounds it. The founding generation, Arkes has consistently argued, grasped the truths of the natural law and believed that these truths lay at the root of American constitutional government. Today, he says, we must do likewise: see beyond the constitutional text to the eternal principles of natural law antecedent to the Constitution’s ratification. What constitutional law needs is more moral argument about the natural law...

Arkes seems to be looking at our moral fractures through the wrong end of the telescope. He writes: “There has been no more common distraction over ‘rights’ than the tendency to fixate on rights to particular things, such as jobs or housing, while blocking from sight these underlying principles that mark the rightful and wrongful claims to these goods.” This is wrong, and its wrongness is illustrative of the way the book misfires. The last thing we need is more constitutional debate about high principle—about what dignity or equality or freedom or autonomy or even justice, in the abstract and divorced from ordinary life, requires of our constitutional law. In a society increasingly riven by disagreement over fundamental commitments, it is the world of the concrete, of practices, particulars, customs, habits, and traditions, that assumes ever greater importance. Or, to put it in a natural law register, we need a greater focus in constitutional law on ius—on the objects of constitutional justice—to clarify what our principles demand from our law. From the bottom up.

What we need, in a word, is a constitutionalism of things and the practices that attend them. That is what our Constitution and its law concern: voting procedures, religious observances and symbols, speech practices, families, homes, businesses, firearms, countless varieties of human relationships, schools, property and contractual arrangements, wills, government policies and programs of many kinds, and innumerable other cultural and political practices. The constitutionalism we need must shore up these practices of the past against the ruin of the present. This is why Lewis began as he did, with baby steps and quotidian cases rather than abstract principles. Seventy years after Mere Christianity, we need that approach more, not less, acutely. We are not ready—indeed, we are less ready than we have ever been—to be confronted with the empyrean of high natural law principle, which Arkes illustrates in this book with his usual verve and panache. The truths of the sky are real enough, but anchoring truths are found in the earth.