Published October 4, 2021
I am so fond of Hadley Arkes that I am especially sorry to see that we are in deep disagreement over his Wall Street Journal op-ed last week arguing for a “better originalism” supposedly rooted in the “moral ground” of the Constitution. Arkes has responded at length to my critique. I offer these points in reply.
1. Arkes’s main claim is that my position that Supreme Court justices should not indulge their own moral preferences in interpreting the Constitution means that I believe that “moral judgments are merely expressions of personal feelings with no evident claim to truth,” that I “deny that there are any moral truths for reason to discern.” His claim is, to borrow a phrase from Justice Scalia, pure applesauce.
My belief that the justices should not indulge their moral convictions in interpreting constitutional provisions does not turn at all on a “moral skepticism” that Arkes wrongly posits that I have “so evidently absorbed.” It turns instead on my belief that the role of a federal judge is distinct from that of a legislator. I believe firmly that there are “moral truths for reason to discern.” What I am skeptical of is Arkes’s ill-defined suggestion that such discernment properly plays a role in constitutional interpretation.
To illustrate the point: Either (A) the death penalty is never morally permissible, or (B) the death penalty is sometimes morally permissible. These are two mutually exclusive propositions, and one of them is certainly correct. I have formed my own belief on the matter. But I don’t think it’s consistent with originalist methodology for Supreme Court justices on either side of the moral question to rely on their moral convictions in deciding whether the death penalty violates the Constitution.
2. I argued in my critique that, in addition to being wrong in principle, it would be harmful in practice for adherents of originalism to invoke their moral convictions, as that would seem to legitimate the Left’s practice of imposing its own moral readings. Arkes asserts that “the obvious remedy to the overreaching of the Left is to show precisely why their reasoning has been specious and false.” Ah, yes, such an “obvious remedy.” As if there is any realistic prospect that if only the originalist justices were to explain why abortion is immoral, the liberal justices would abandon their conflicting moral belief that abortion is essential to women’s equality. As if members of the public who haven’t yet been swayed by the pro-life cause could be expected to accept such an explanation.
A belief in the existence of “moral truths for reason to discern” does not warrant a belief that closed minds will open up to accept those truths.
3. In an evident effort to make resort to moral reasoning seem valuable in making the case against Roe v. Wade, Arkes’s op-ed ignored the overwhelming originalist case against Roe—a case that rests on constitutional text (and silence), structure, history, and tradition—and instead asserted that the originalist case rests only on the fact that “abortion is nowhere mentioned in the Constitution.” I showed in my critique that Justice White and Justice Rehnquist, in their dissents in Roe, made a much more comprehensive case than Arkes acknowledges they made.
Arkes imagines that White’s statement that he “find[s] nothing in the language or history of the Constitution to support” Roe supports his claim. “Is that not clear,” asks Arkes, “that [White] finds nothing in the ‘language’ composing the text?” But the argument that there is “nothing in the language … of the Constitution” to support Roe is much broader than simply pointing out that the word abortion doesn’t appear in the Constitution. That broader textualist argument of course plays an essential (and probably a sufficient) role in the originalist case against Roe. But there was still more to White’s case, as his reference to the “history of the Constitution” makes clear. Arkes now states that Rehnquist made “an appeal to history or tradition,” but he avoids acknowledging that his initial assertion about Rehnquist was, as I put it, “patently false.”
Arkes instead shifts to argue that Justice Scalia was “content to rely on the point that abortion was nowhere mentioned in the Constitution.” In support of that claim, he snips from Scalia’s dissent in Stenberg v. Carhart (2000)—a case in which the Court was not directly considering Roe—a sentence in which Scalia states that “the Constitution, by its silence on the subject [of abortion], left it” to the people to decide whether partial-birth abortion should be allowed. But Scalia’s conclusion that the Constitution was silent on the subject of abortion goes beyond the fact that the word abortion does not appear in it. Arkes also ignores the immediately preceding sentence in which Scalia observes that the Court is “armed with neither constitutional text nor accepted tradition” to justify its power grab on abortion.
Scalia’s more extended treatment of the question thoroughly refutes Arkes’s claim. In Planned Parenthood v. Casey (1992), for example, Scalia joined Chief Justice Rehnquist’s dissent, which, among other things, argued that the Constitution does not confer an “all-encompassing ‘right of privacy’” and cited the common-law offense of abortion and the history of state statutory prohibitions and restrictions to show that “the historical traditions of the American people [do not] support the view that the right to terminate one’s pregnancy is ‘fundamental.’” In his own dissent in Casey, Scalia set forth “two simple facts” that led him to conclude that there is no constitutional right to abortion: “(1) the Constitution says absolutely nothing about it, and (2) the longstanding traditions of American society have permitted it to be legally proscribed.”
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There are (at least) six justices on the Court who ought to recognize in the pending case of Dobbs v. Jackson Women’s Health Organization that the originalist case against Roe is overwhelming. It is neither sound in principle nor helpful in practice to try to persuade those justices that they may overrule Roe only if they make a moral argument against abortion.
Ed Whelan is a Distinguished Senior Fellow of the Ethics and Public Policy Center and holds EPPC’s Antonin Scalia Chair in Constitutional Studies. He is a regular contributor to NRO’s Bench Memos. He is co-editor of The Essential Scalia: On the Constitution, the Courts, and the Rule of Law.