Making Men Moral: Hadley Arkes on the Indissoluble Connection Between Law and Morality

moral22The biography of Hadley Arkes, the conference’s final speaker:

“Hadley Arkes has been a member of the Amherst College faculty since 1966. He was the William Nelson Cromwell Professor of Jurisprudence, and was appointed, in 1987, as the Edward Ney Professor of American Institutions. He has written five books with Princeton University press: Bureaucracy, the Marshall Plan, and the National Interest (1972), The Philoarkes-150sopher in the City (1981), First Things (1986), Beyond the Constitution (1990), and The Return of George Sutherland (1994). His most recent book, Natural Rights and the Right to Choose, was published by Cambridge University Press in the fall of 2002. Professor Arkes has been the founder, at Amherst, of the Committee for the American Founding, a group of alumni and students seeking to preserve, at Amherst, the doctrines of “natural rights” taught by the American Founders and Lincoln.”

The following is my summation of Arkes’s closing remarks.

I am breathing the fresh air of a red state!  This is quite the joy, coming from Massachusetts, the people’s republic.  They wouldn’t take my currency down here, with it’s picture of Dukakis on it. 

Quoting Samuel Johnson: “geometricians by accident, but moralists by necessity.”  The very mark of the polis was the law.  This binds our private preference in favor of a public concern.  To come to moral judgment is to speak in the voice of command, which forbids the torture of children or the killing of a baby.

Yet the most curious thing is that many elites have denied this fundamental principle.  Robby’s book stands as a notable marker to restore the classic connection between morality and law.  It’s impossible to have law without morality.  It’s like asking for coffee without syntax.  We now see legislators who work extremely hard to avoid any notion of morality in their legal language.  This is ridiculous.  When David Souter, for examples, encounters the issue of topless dancing, he moves to the secondary issue of how an establishment featuring this activity will draw pickpockets.  This is bankrupt.

Laws Are Not Invitations
When we make laws, we do not invite people to obey, we say that we are displacing their personal choice.  The rule of action will shape all subsequent conduct in this realm.  Every great political philosopher has considered this question.  We must explain the principle of “rightness” so that we can make laws that are “right” and “valid” for others.  If something is wrong, it’s wrong for everyone.  In the Lincoln-Douglas debate, Douglas professed to have no moral judgment.  Lincoln retorted rightly that this was a moral judgment. 

A part of what I want to bring out today is that the logic of morals is anchored in the logic of reason.  From the left, with the homosexual lobby, first the left denied the presence of morality in laws, then brought morality back in to silence those who oppose gay marriage.  First, we heard that one could not legislate “taste” on sexuality any more than one could legislate taste for frozen yogurt.  So there was no grounds for casting judgments–but wait!  There was a wrong: casting judgments!  So those who barred gay couples from adopting needed to have judgments cast against them.  It also becomes fine for people to be prosecuted when they dare to preach about the homosexual lifestyle, which is “judging.” 

The Purpose of the State
With these steps, we move closer to Aristotle’s understanding of the state: to inculcate moral sense and good judgment in the people.  The law teaches that we will move from the domain of private preference to a matter of moral consquence.  In Massachusetts in November 2003, the Supreme Court struck down the constitutional rules on marriage.  The judgment of the Court produced “natural recoil of shock.”  However, several years later, the people had changed their mind.  Where once most opposed same-sex marriage, now there seemed to be a slight majority for it.  This was what Machiavelli called “a new regime” with new laws.  Schoolchildren were now taught from as early as the first-grade what sexual acts between men look like.  School budgets would now pay for gay and lesbian-friendly programs.  Money came into play; legislators were bought off. 

As we can see, all people do indeed make moral judgments.  The preceding shows that there is a moral dimension built into the very fabric of politics.  It is in the very heart of it.  One cannot avoid it.  Arkes pointed to a law that argued that the discrimination against blacks was hurting the inter-state commerce in meat.  He pointed out satirically that the abortion industry, with 1.3 million babies killed, hurt the sale of bassinets.  There is something wrong with this rationale that the federal government is using to legislate morality.

Being Clear About Right and Wrong
We need to be clearer about the wrong.  In the past, state governments and local governments took responsibly for moral matters.  The federal government was thought to have a far more limited scope of concerns.  John Marshall once mused on what would happen if a state desired to dissolve marriage without the consent of the couple.  Here he showed that something could arise that could bring marriage within the reach of the federal constitution.  So Dred Scott would have to come back to Missouri, because it didn’t recognize marriage between slaves.  This has happened more recently as well.

It requires one Kantian insight to make sense of this matter.  There is nothing that we can name, no activity, so prosaic that it cannot be part of a means-end chain that cannot inflict harm.  An ambulance can either help save lives or kill a street-crossing pedestrian.  As we have seen, even the most local of subjects could handle issues that bear on matters of the Constitution.  My argument is that there is no way that one can make law without moral arguments.  The effort to finesse moral questions on secondary grounds fails.  Laws must be made through the substance of moral thinking itself.  The notion of a national government of limited powers falls into a fallacy if we think that we can write a list of subjects that the federal government cannot reach.  The example of Roe v. Wade, among other laws, show us that the national government will readily reach into all areas.

In closing, then, the notion of a limited government makes eminent sense.  I would suggest that a limited government does not require a Constitution.  Restraint may be found, I think, in the very idea of the self, the human person.  Limits come upon human autonomy; there are certain wrongful things that people must forgo in living in the state.  To put it differently, they are thus encouraged to concentrate their full range of powers on good things. 

Plato: the person with the well-ordered soul, governed by reason, had a constitutional ruler within himself.  A government under constitutional restraint takes its model from the person who controls himself and rules his appetites by the power of reason.  The person with self-control is not the weaker person, but the stronger.  So it is with government.

Again: geometricians by accident, but moralists by necessity.  We must face moral questions either well or badly.  We cannot escape them.  It is time to reconcile ourselves to the notion that this is the life we lead, and the life we must learn to do well. 

Remarks on Neuhaus
His persistent line: we can still turn this around.  He always saw the capacity of human beings to reach outside themselves and do something extraordinary.  We buy up our friends, and ply others with compensation, saying, whenever you are as certain about something as I am, go forward; when you are uncertain, hesitate; if ever you go wrong, come back.  In this way, we will make our way to the One of whom it is said: Seek His face.  Seek His face always.

My Take
This was a splendid lecture.  Arkes has a golden pen.  He also speaks very clearly and peppers his speaking with all sorts of fun stories and practical illustrations.  His central contention, that none of us can help but be moralists, immediately convinced me of its aptness.  This is surely, incontrovertibly right.  If you sit back and think about it for a moment, and let it sink in, you’ll be convinced.  We can’t avoid moral questions.  We all face them.  Our society cannot help but confront them.

Arkes left the logic of the left exposed like the emperor marching in his parade.  He showed beyond a shadow of a doubt that the left plays an ideological shell game to advance its ideas.  First, it says that we shouldn’t legislate morality; then, it creates a case for its positions; then, it invokes the language of morality to ground its positions, claiming unassailable moral territory; finally, it brings the hammer, enacting its laws and excoriating and judging all who go against its views. 

This process, furthermore, has the effect of creating cultural impressions.  People’s minds change as this process develops, such that in the beginning they disagree and by the end they end up thinking, “Yeah, this issue (gay marriage, abortion as choice, etc.) really isn’t my business.  It really is a matter of choice, and I don’t want anybody impinging on my right to choose.”  But Arkes shows us that this thinking is off-course from the start.  We have to legislate choices.  Unless we desire a law-less state in which anyone can do anything that they want, we must realize that we already desire a state driven by law, which is of course driven by morality (the basic moral questions, remember, must make their way into our legal code).  In addition, all who affirm a doctrine of sin (and even those who don’t!) must remeber per Arkes that it is not wrong to mark actions as wrong, but right.  We Christians must not buy the left’s logic on morality, both because it is disingenuous and also because we must restrain sin and evil.

Arkes’s taxonomy of liberal activism was itself worth the time of the lecture.  But his talk was much richer than that.  He is a deeply profound thinker.  I commend his thinking and writing to all.

"A sane voice in this discussion. Thanks."

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