Posted: February 26, 2003
ho of conservative temper can bear the abolitionists of old? I'm not talking about Frederick Douglass, who could speak of slavery and liberation from personal experience and who understood the relation between principle and politics as well as any man of his generation. No, I have in mind William Lloyd Garrison and others whose fervor for abolition was tempered neither by sympathy for the South's predicament nor by respect for the Constitution. "No Compromise with Slavery" and "No Union with Slaveholders" were his mottos, immediate uncompensated emancipation was his program, and the refusal to shake hands with slave-owners was his style. Garrison was convinced that the South would surrender to abolition if the North dissolved the Union and thus withdrew its implicit commitment to suppress slave rebellion. Whether Garrisonian abolitionism hastened the day of emancipation or fueled Southern intransigence remains debatable among historians, though modern-day social reformers are eager to claim his legacy.
In retrospect and maybe even at the time, part of what is irksome about the Garrisonians is that they had the principle right: that in the context of an economy that could avoid universal squalor without servitude, chattel slavery is a violation of natural rights and so is morally wrong. Few of us want to be preached at, unless the topic is our neighbors' sins, and fewer still find anything attractive in hearing a truth that tells against our deepest interests or forces us to readjust a conscience fully formed. How to present unwelcome truth in a way that leads a substantial number of men and women to change how they act, how they vote, and what they uphold as law is a task worthy of a great statesman in a democracy. Readers of the Claremont Review of Books will hardly be surprised if I suggest not Garrison but Abraham Lincoln as such a figure, and even he succeeded more in clarifying the moral purpose and political thinking of those who agreed with him than in persuading slavery's supporters to abandon it as wrong.
Hadley Arkes, the Edward N. Ney Professor of Jurisprudence and American Institutions at Amherst College, is a modern-day abolitionist who esteems Lincoln rather than Garrison, and who labors to bring unwelcome truth to the attention of powerful people in political and academic life. With compelling logic and disarming humor, in a series of books published since 1986, and in his steady involvement with leading pro-life lobbyists and legislators, he has argued that abortion is the intentional killing of a human being, that its enshrinement as a constitutional right contradicts and thus undermines the natural-rights basis of the American republic, and that a way must be found to put the practice of abortion in the course of ultimate extinction. His stance on abortion itself is uncompromising, but it is based on a careful consideration of biological evidence about the earliest stages of human development and a clear grasp of the logic of natural law. Abortion is a clear moral evil because at every stage it involves the destruction of what can be known biologically to be human life and because the right to life of the individual human being is a moral absolute, or at least a right that can be forfeited only by a conscious evil act of the living agent himself. But if Arkes is unequivocal in recognizing the evil of abortion, he has learned from Lincoln that constitutional government requires practical compromise, even in the presence of moral evil. Like Lincoln, he refuses to allow the evil to be enshrined as a constitutional principle, but he likewise refuses to make its eradication an immediate constitutional necessity. Lincoln taught abolitionists to respect the Constitution even when it seemed to protect the evil they hated, and he showed them how to use the Constitution to achieve, in the long run, the good they sought. More precisely, he showed them that the good they sought was already implicit in the Constitution's deepest principles, and thus could be achieved finally only by constitutional means.
Natural Rights and the Right to Choose is Arkes's most recent book. It is partly a restatement of his argument in First Things (Princeton University Press, 1986) and Beyond the Constitution (Princeton University Press, 1990), partly an account of abortion jurisprudence and politics since those books were published, and partly a memoir of his own role in the debate. In a remarkable twist of fate, the memoir's dénouement, as it were, occurred while the book was in press. No small part of Arkes's story concerns the "modest first step" in the campaign to restore legal protection for unborn human life that he proposed in the late 1980s and early '90s, a statute that would protect the right to life of a child who survived an abortion. (There actually are a few who have lived to tell the tale, and nurses testify of others born alive and left to die.) Arkes's proposal was originally rejected by pro-life lobbyists in favor of legislation to ban "partial-birth abortion," which President Clinton vetoed several times and the Supreme Court also frowned on, and little progress had been made on his legislation when the book went to press last June. Then, unexpectedly, in July and early August, as if to put the lie to the pessimistic mood of the book's conclusion (and to vindicate the publisher's insistence on abandoning the author's original title, The Genteel Treason of the Political Class), both houses of Congress unanimously passed, and President Bush signed into law, the Born-Alive Infants Protection Act. Professor Arkes was not only invited to the signing ceremony but was saluted as the act's progenitor.
The charge of treason may have been dropped from the title, but it is key to his argument and indicative of his seriousness. This is not constitutional treason, which requires an overt act of war and a second witness, but a betrayal by some of America's most prominent citizens—especially federal judges and lawyers and law professors—of the Constitution and the laws, of American democracy, of nature, of reason itself. A big charge, but Arkes carefully builds his case, drawing always on the precedent of Lincoln in his confrontation with the slave power, or more precisely, on the analysis of Lincoln's words and deeds developed by Harry V. Jaffa, especially in his "magisterial book," Crisis of the House Divided.
Between slavery and abortion, according to Arkes, there is not merely an analogy but an almost perfect repetition. The legal personhood of human beings is denied by an elite who perceive their own interest as incompatible with equality. Nature is ignored and the law is distorted. Democracy grows corrupt, as rights are re-defined as the positive gift of political power rather than the intrinsic endowment of human nature. Finally, reason itself seems disarmed before a wall of prejudice and interest, as otherwise reasonable people argue themselves into positions that contradict the principles of the Declaration of Independence.
Like Jaffa's Lincoln, Arkes proceeds with confident, calm rationality to dismantle the assumptions of his opponents, and he likewise takes as his touchstone the way of thinking of the American Founders. American government was founded on a revolutionary principle, Arkes explains, that human beings have rights intrinsic to their humanity which governments are bound to respect. Because human beings are rational agents, government can arise legitimately only with their consent, and the political processes of constitutional government are designed to facilitate the intelligent exercise of that consent. Even with consent of constitutional authorities, however, those original, natural rights cannot be removed without undermining the basis of consent. But so important is consent or self-government that the repair of a breach must also be made in such a way as not to further undermine the processes of consent. This is all put quite abstractly, but Arkes develops his case with historical detail, lively anecdote, personal experience, and a gripping narrative. How can any rights be inviolable if the definition of who counts as having rights is wax in the hands of the dominant social power?
Abortion is at the core of arkes's argument, but he speaks to the whole of constitutional government, and his criticisms extend not only to his partisan opponents but to his misguided friends. The deep-seated relativism that made possible the Court's opinion in Roe v. Wade, Arkes holds, was prepared by judicial doctrines concerning freedom of expression, especially the notion that regulation of speech must be "content neutral," and judges such as John Marshall Harlan the younger and Antonin Scalia, often thought the most conservative of their eras, in fact played a major role in writing relativism into law. In a nuanced chapter on "the axioms of the Constitution," Arkes shows how it is an aberration in our constitutional tradition to treat the Supreme Court as having the final say on matters of constitutional principle. At the same time, he suggests how a pro-life Court in 1970 might have protected the right to life against liberalized abortion statutes without closing down public debate. For all his admiration and praise of the founders, Arkes is no rigid originalist; once the federal courts have nationalized the question of abortion, there is no simple turning back to state legislation without the other branches of the federal government weighing in to correct the judiciary's mistakes.
The implication of the "modest first step" that Arkes proposes is not a pro-life Court that would promulgate a pro-life Roe next term (though he does not rule this out as an eventual possibility), but the resumption of public debate on issues of first importance. He means public debate culminating in the making of law, not debate in law school journals, culminating only in the next judicial fiat. If there is pessimism in his account of the extent to which the political class has lost its stomach for such debate, acquiescing in the rule of a highly educated elite, there is optimism in his view that "once the conversation is opened, it will set off its own dynamic, and that dynamic will work in the direction of expanding the protections for unborn children"—and of restoring vitality to republican government itself.
In the spirit of that debate, let me fire a few shots across the bow. The first is philosophical. Whereas Arkes conflates natural law and natural rights, Leo Strauss ("Jaffa's teacher [and mine]," says Arkes) famously distinguished them: In classical political philosophy, natural right was the claim of the wise to rule, while in the Stoics and especially the Christian medievals, natural law developed as a doctrine of universal moral duty under the wing of divine providence. Modern natural rights theory rejects both the claim of the wise and the priority of duty, beginning instead from the right of each individual to pursue his own interest and to be the judge of what that is. To put the problem another way: though Arkes endorses the famous Socratic adage that "the unexamined life is not worth living," the thought that someone might judge another's life not worth living is precisely what he insists American law must not allow. Missing in Arkes's account is the irony in Herbert Storing's superb essay on slavery and the Constitution, when Storing wonders whether the emphasis on property rights and self-interest in American thinking might not have blinded some Americans to the moral wrong of holding property in another. Missing, too, is the equivalent of Jaffa's stunning "case for [Stephen] Douglas," better than that made by Douglas's own apologists, which at once deepens and exalts the case for Lincoln.
Arkes appeals throughout to the authority of Aristotle, especially for his notion of the educative function of the law and the moral character of the regime, but on both the question of slavery and the question of abortion Aristotle is, to put it charitably, an unreliable ally. In one passage, Arkes says of Kant's statement tracing "the whole of ethics" to "the general concept of the rational being as such" that it "should be set down in all the primers," but Kant would sharply distinguish his moral metaphysic from any account of nature—unlike Arkes, who relies on the evidence of biology in his attack on abortion. It's probably no accident that liberal defenders of an absolute abortion right, like John Rawls, invoke Kant. My point in all this is not that Arkes is mistaken in his principles—indeed, I find them especially attractive—but rather that there are questions of the first order that need addressing next time.
My second question concerns Arkes's account of political and constitutional history, and the place of tradition in constitutional law. Arkes makes a compelling case that, especially in recent abortion cases, members of the federal judiciary have worked out the perverse logic of their commitment to the rights of sexual liberation, and he suggests, persuasively, that the courts would never have undertaken to reform American sexuality without the mantle of heroism earned for breaking the political logjam on segregation. But he also knows that it was neither sex nor heroic ambition that first broke the hold of natural law in judicial reasoning. The essays and opinions of Oliver Wendell Holmes, Jr., who had fought at Antietam, made moral relativism and legal realism the coin of sophisticated legal analysis a century ago, and the demise of free-market natural-lawyering in the face of the New Deal is well known to our author. Arkes's defense of pre- or anti-New Deal jurisprudence in The Return of George Sutherland (Princeton University Press, 1994) helped restore the good name of an important jurist, but perhaps also saddled the pro-life position with a lost cause. Is it possible that both Holmes and Sutherland reflected an ambition for too much theory in the law, displaying too sophisticated an intellectual consistency and too little respect for the variegated complexity of human life embodied in the older common law?
Finally, in the public debate over abortion, is the language of natural rights sufficient? Granted the force of Arkes's argument against those who license abortion, might not a true and firm commitment to unborn life in the hearts of citizens demand a love of the child, a wonder at human development, and an openness to the ways of providence that the theory of natural rights can neither command nor explain?
But such questions should not and cannot obscure Hadley Arkes's luminous achievement. The "right to choose" has come to mean that moral questions will be settled in the spirit of consumer choice or personal whim. That they become again matter for reasoned public debate and common action is the aim of this humane and humanizing book, however unwelcome the truths it tells.