Acknowledgments

1. Barack Obama, The Audacity of Hope: Thoughts on Reclaiming the American Dream (New York: Three Rivers Press, 2006), 93–96.

Chapter 1: The Natural Law Challenge

1. Tom Stoppard, Jumpers (New York: Grove Press, 1972), 87.

2. Cicero, On the Republic 3.7, in The Political Works of Marcus Tullius Cicero, trans. Francis Barham (London: Edmund Spettigue, Chancery Lane, 1841).

3. “From Thomas Jefferson to Roger Chew Weightman, 24 June 1826,” Founders Online, https://founders.archives.gov/documents/Jefferson/98-01-02-6179.

4. Abraham Lincoln, speech in Peoria, Illinois, October 16, 1854, in The Collected Works of Abraham Lincoln, vol. 2, ed. Roy P. Basler (New Brunswick: Rutgers University Press, 1953), 266.

5. James Wilson, “On the Natural Rights of Individuals” (originally published in 1804), in The Works of James Wilson, vol. 2, ed. R. G. McCloskey (Cambridge, Massachusetts: Harvard University Press, 1967), 589. The essay can also be found in a more recent and perhaps more widely accessible edition: The Collected Works of James Wilson, vol. 2, ed. Kermit L. Hall and Mark David Hall (Indianapolis: Liberty Fund, 2007), 1057–58.

6. Baruch de Spinoza, A Theologico-Political Treatise and A Political Treatise, trans. R. H. M. Elwes (New York: Dover Publications, 2004), 200. From chapter 16 of the Theologico-Political Treatise.

7. Oscar Hammerstein II (lyrics) and Jerome Kern (music), “Can’t Help Lovin’ Dat Man,” from Show Boat (1927).

8. Francisco de Vitoria, De Indis Et De Jure Bells Reflectiones, ed. Ernest Nys (Washington, D.C.: Carnegie Institution, 1917), 248. The Reflections were originally published in 1696, from a lecture delivered at the University of Salamanca in 1539.

9. Wilson, “On the Natural Rights of Individuals,” 597; see page 1068 in the Liberty Fund edition.

10. United States v. Windsor, 570 U.S.

11. Obergefell v. Hodges, 576 U.S 644 (2015), at 2 of Scalia’s dissent.

12. Bostock v. Clayton County, Georgia, 590 U.S. ___ (2020).

13. See “Brief of Scholars of Philosophy, Theology, Law, Politics, History, Literature, and the Sciences as Amici Curiae in Support of Petitioner” in the case of R. G. & G. R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission, 590 U.S. __ (2020). David S. Crawford, Michael Hanby, and Margaret Harper McCarthy were the principal authors.

14. See Michael Hanby and David Crawford (with an assist from Margaret Harper McCarthy), “The Abolition of Man and Woman,” Wall Street Journal, June 24, 2020.

15. “Kagan: ‘We Are All Originalists,’ ” The BLT: The Blog of LegalTimes, June 29, 2010, https://legaltimes.typepad.com/blt/2010/06/kagan-we-are-all-originalists.html. Kagan was responding to a question from Senator Leahy of Vermont and speaking of the framers who had written the Constitution: “Sometimes they laid down very specific rules. Sometimes they laid down broad principles. Either way, we apply what they tried to do…. In that way, we are all originalists.”

16. Jonathan Gienapp, The Second Creation: Fixing the American Constitution in the Founding Era (Cambridge, Massachusetts: Harvard University Press, 2018), 21–22, 112.

17. See Max Farrand, ed., The Records of the Federal Convention of 1787, rev. ed., vol 2 (New Haven: Yale University Press, 1966), 376; quoted in Hadley Arkes, Beyond the Constitution (Princeton, New Jersey: Princeton University Press, 1990), 61.

18. See Arkes, Beyond the Constitution, especially chapters 5–7.

19. The Natural Law was fitted distinctly to those creatures with the gift of reason, and so, against the “law of a dog” or of sheep, the “law of a man, which… is allotted to him according to his proper natural condition is that he should act in accordance with reason.” Thomas Aquinas, Summa Theologica I-II 91.6, Basic Writings of Saint Thomas Aquinas, vol.

Chapter 2: The Path of Vignettes

1. Roe v. Wade, 410 U.S. 113 (1973), at 159.

2. Neil Gorsuch, A Republic, If You Can Keep It (New York: Forum Crown Books, 2019), 112.

3. Philosophy Overdose, “4: Reid on Causation and Active Powers—Reid’s Critique of Hume (Dan Robinson),” YouTube, June 19, 2021, at 14–15, but especially 24ff, https://www.youtube.com/watch?v=I7i-lJ-awHo; Philosophy Overdose, “2: Reid & Common Sense Realism—Reid’s Critique of Hume (Dan Robinson),” YouTube, June 19, 2021, at 18–20, 25–30, but especially 47–50, https://www.youtube.com/watch?v=0RBak-E9xC0.

4. Thomas Reid, Essays on the Active Powers of the Human Mind (Cambridge, Massachusetts: MIT Press, 1969), 249. Originally published in 1788.

5. Philosophy Overdose, “6: Reid on Personal Identity: Reid’s Critique of Hume (Dan Robinson),” YouTube, June 19, 2021, at 44–49, https://www.youtube.com/watch?v=LfLZoRhaX34.

6. Thomas Reid, An Inquiry into the Human Mind on the Principles of Common Sense, ed. Derek R. Brookes (Pennsylvania Station: Pennsylvania State University Press, 1997), 16–17, originally published in 1764.

7. Quoted in Thomas West, Vindicating the Founders (Oxford: Rowman & Littlefield, 1997), 7.

8. Thomas Reid, Essays on the Intellectual Powers of Man (Cambridge, Massachusetts: MIT Press, 1969), 654, originally published in 1814–15.

9. This is my version of Reid’s principle: “What is done from unavoidable necessity… cannot be the object either of blame or moral approbation.” Reid, Essays on the Active Powers, 361.

10. “As a rational being, and consequently as belonging to the intelligible world, man can never conceive of the causality of his own will except under the idea of freedom; for to be independent of determinism by causes in the sensible world (and this is what reason must always attribute to itself) is to be free.” Immanuel Kant, Groundwork for the Metaphysics of Morals, trans. H. J. Paton (New York: Harper & Row, 1948), 120, originally published in 1785. See chapter 4 note 3 below.

11. Immanuel Kant, Fundamental Principles of the Metaphysics of Morals, trans. Thomas K. Abbott (Indianapolis: Bobbs-Merrill, 1949), 42 and 58, originally published in 1785.

12. There may be no better compendium of the strands of Holmes’s writing and thought that denied any moral ground of justification for the law than that found in Albert Alschuler’s book Law without Values: The Life and Work and Legacy of Justice Holmes (Cambridge, Massachusetts: Harvard University Press, 2000), especially 88–89.

13. C. S. Lewis, Mere Christianity (New York: Macmillan Publishing Co., 1977), 17–18, originally published in 1943.

14. Ibid.

15. Reid, Essays on the Intellectual Powers of Man, 464–65, note 4. Cited in Hadley Arkes, First Things (Princeton, New Jersey: Princeton University Press, 1986), 23.

16. Ibid., 474.

17. See G. E. Moore, “The Objectivity of Moral Judgment” in Ethics (1912), chapter 3. From Moore’s rather extended working of the problem, we may as well extract these lines as any: “It may be held that whenever any man asserts an action to be right or wrong, what he is asserting is merely that he himself has some particular feeling towards the action in question. Each of us, according to this view, is merely making an assertion about his own feelings: when I assert that an action is right, the whole of what I mean is merely that I have some particular feeling towards the action; and when you make the same assertion, the whole of what you mean is merely that you have the feeling in question towards the action.”

18.

19. Jean-Jacques Rousseau, The Social Contract, I, book 4, chapter 6, n. 5, in Social Contract, ed. Sir Ernest Barker (London: Oxford University Press, 1960), 203, originally published in 1762.

20. Oliver Wendell Holmes Jr., “The Path of the Law,” in Collected Legal Papers (New York: Harcourt Brace and Company, 1920), 179.

21. Alschuler, Law without Values, 88–89.

22. Newman in Roe v. Maher, 408 F. Supp., 663, note 3, quoted by Justice Powell in Maher v. Roe, 432 U.S. 464 (1977), 468. Justice Powell had been part of the majority in Roe v. Wade, and so it is quite interesting that only four years later, Powell was willing to write an opinion that rejected this opinion by Judge Newman in the District Court in Connecticut. At that time Powell and most of his colleagues were willing to hold that abortion and childbirth were indeed not on the same moral plane, and that a state may legitimately tilt its policies to favor childbirth over abortion.

23. Quoted in Alschuler, Law without Values, 80, note 10.

24. Philosophy Overdose, “2: Reid & Common Sense Realism.”

Chapter 3: The Ploughman and the Professor

1. Gibbons v. Ogden, 22 U.S. 1 (1824), at 222 and 278.

2. Alexander Hamilton, Federalist no. 31, in The Federalist (New York: Random House), 188.

3. Bertrand Russell, The Problems of Philosophy (Oxford: Oxford University Press, 1959), 89, originally published in 1912.

4. Thomas Jefferson, letter to Peter Carr, August 10, 1787, in Writings of Thomas Jefferson, ed. Paul Leicester Ford (New York and London: G. P. Putnam’s Sons, 1899), 902, cited in Carroll William Westfall, Architecture, Liberty and Civic Order: Architectural Theories from Vitruvius to Jefferson and Beyond (Farnham, Surrey, UK: Ashgate, 2015), 120.

5. Abraham Lincoln, The Collected Works of Abraham Lincoln, vol. 2, ed. Roy P. Basler (New Brunswick, New Jersey: Rutgers University Press, 1953), 222.

6. J. Budziszewski, What We Can’t Not Know (Dallas, Texas: Spence Publishing, 2003).

7. Abraham Lincoln, speech in Chicago, July 10, 1858, in The Collected Works of Abraham Lincoln, vol. 2, ed. Roy P. Basler (New Brunswick, New Jersey: Rutgers University Press, 1953), 499, note 5.

8. James Wilson, “Of the Law of Nature,” in The Works of James Wilson, ed. Robert Green McCloskey (Cambridge, Massachusetts: Cambridge University Press, 1967), 126, originally published in 1804.

9. See Thomas Reid, Essays on the Active Powers of the Human Mind (Cambridge, Massachusetts: MIT Press, 1969), 48, originally published in 1788.

10. Nyquist v. Mauclet, 432 U.S. 1, at 17–18 (1977). The case involved access to a subsidized higher education in New York. The privilege would be available only to students who were American citizens, but New York was willing to extend the privilege to resident aliens if they filed an intention to become a citizen. With that provision in place, Rehnquist was not prepared to set aside as untenable a policy of reserving some privileges for citizens. He wrote here in dissent.

11. John Stuart Mill, Utilitarianism (Indianapolis: Bobbs-Merrill, 1957), 61, originally published in 1861.

12. See, for example, Hadley Arkes, The Return of George Sutherland (Princeton, New Jersey: Princeton University Press, 1994), 80–81, for analysis of Sutherland’s reasoning in Patton v. United States, 281 U.S. 276 (1930). And see also 263, 268, and 272 on how that reasoning may affect the reading of other cases.

13. See Judge Brown’s powerful concurring opinion in Hettinga v. United States, 677 F.3d 471 (2012). Judge Brown adverted to the sharp dissent of Justice MacReynolds in Nebbia v. New York, 291 U.S. 502 (1934), in an opinion that has long been filtered out of our histories and case books.

14. See Nebbia v. New York.

15. Janice Rogers Brown, Hein Hettinga concurrence, note 13.

16. See Adkins v. Children’s Hospital; same v. Willie Lyons, 261 U.S. 525 (1923).

17. Lochner v. New York, 98 U.S. 45 (1905). Quite recently Chief Justice Roberts was willing to join the flash mob of jurists ever ready to denounce Lochner as an embarrassment for the Court. And in the same sweep he commended West Coast Hotel Company v. Parrish, et ux., 300 U.S. 379 (1937), the case in which the Supreme Court, turning now to sustaining the New Deal, overruled Sutherland’s classic opinion in the Adkins case. See Roberts’s dissent in Obergefell v. Hodges, 576 U.S. 644 (2015).

18. Adkins, at 557, note 16.

19. Ibid., at 558.

20. Edwards v. California, 314 U.S. 160 (1941), at 176, 184–85.

21. Bowen v. American Hospital Assn., 476 U.S. 610 (1986). For a more detailed examination of this case, see Hadley Arkes, Beyond the Constitution (Princeton, New Jersey: Princeton University Press, 1990), chapter 9, especially 232–44.

22. See United States v. University Hospital, 729 F.2d 144 (1984), at 162.

23. Ibid.

24. See Arkes, Beyond the Constitution.

25. See Arkes, “Antijural Jurisprudence,” in Natural Rights & the Right to Choose (Cambridge: Cambridge University Press, 2002), 112–46.

26. Gilbert Ryle, The Concept of Mind (Chicago: University of Chicago Press, 2002), originally published in London and New York, 1949.

Chapter 4: On Aquinas and That Other First Principle of Moral Judgment

1. Thomas Reid, Essays on the Active Powers of the Human Mind (Cambridge, Massachusetts: MIT Press, 1969), 48, originally published in 1788. And later: “If the obedience be impossible; if the transgression be necessary; it is self-evident that there can be no moral obligation to what is impossible, that there can be no crime in yielding to necessity; and that there can be no justice in punishing a person for what it was not in his power to avoid. These are first principles in morals, and to every unprejudiced mind, as self-evident as the axioms of mathematics. The whole of moral science must stand or fall with them” (296).

2. Thomas Aquinas, Summa Theologica, I-II 94.2, in The Writings of Saint Thomas Aquinas, vol. 2, ed. Anton C. Pegis (New York: Random House, 1945), 774–75.

3. “In contradistinction to natural laws, these laws of freedom are called moral laws.” Immanuel Kant, The Metaphysical Elements of Justice (Indianapolis: Bobbs-Merrill, 1965), 42, originally published in 1797. In the Groundwork for the Metaphysics of Morals Kant says that “the question, ‘How is a categorical imperative possible?’… can be answered so far as we can supply the sole presupposition under which it is possible—namely the Idea of freedom.” Immanuel Kant, Groundwork for the Metaphysics of Morals, trans. H. J. Paton (New York: Harper & Row, 1964), 129, originally published in 1785.

In that vein Kant wrote of those “two standpoints” from which we may view ourselves: From one standpoint, we are in the “sensible world,” the world governed by the laws of nature—if we fall, we fall down; if we are struck in the face, we feel pain; if we eat something monstrous, we get a gastrointestinal reaction. But from the other standpoint, we are not in the world of “determinism” but of “freedom,” the freedom to exert our own will and make our own choices. And that, he said, was the “intelligible world,” where we have access to reasons in forming our judgments. Kant expressed the matter in this way: “Man can consider himself first—so far as he belongs to the sensible world—to be under the laws of nature (heteronomy); and secondly—so far as he belongs to the intelligible world—to be under laws which, being independent of nature, are not empirical but have their ground in reason alone.

“As a rational being, and consequently as belonging to the intelligible world, man can never conceive of the causality of his own will except under the idea of freedom; for to be independent of determinism by causes in the sensible world (and this is what reason must always attribute to itself) is to be free.” Ibid., 120.

In short, moral judgment arises only in the domain of freedom, where people have the power to will their own acts and access to the laws of reason in judging those acts.

4. Reid, Essays on the Active Powers, 361, note 1.

5. Aristotle: “Every polis is a species of association, and… all associations are constituted for the purpose of attaining some good, for all men do all of their acts for the purpose of attaining some good.” Politics 1252a.

And Aquinas: “In those things which clearly act for an end we declare the act to be that towards which the movement of the agent tends…. This may be seen in the physician who aims at health, and in a man who runs towards an appointed goal. Nor does it matter, as to this whether that which tends to an end be endowed with knowledge or not; for just as the target is the end of the archer, so is it the end of the arrow’s flight. Now the movement of every agent tends to something determinate since it is not from any force that any action proceeds, but heating proceeds from heat and cooling from cold; and therefore actions are differentiated by their active principles.” Summa Contra Gentiles, book 3, chapter 2.

6. John Stuart Mill, Utilitarianism, chapter 5.

7. Hearings before the Subcommitee on the Constitution, Committee on the Judiciary, United States Senate, 99th Congress, Sess. 1 (Medical Evidence Concerning Fetal Pain), May 21, 1985, p. 38.

8. Ibid.

9. Abraham Lincoln, debate with Stephen Douglas in Quincy, Illinois, October 13, 1858, in Collected Works of Abraham Lincoln, vol. 3, ed. Roy P. Basler (New Brunswick, New Jersey: Rutgers University Press, 1953), 256–57.

10. From Douglas’s speech in his last debate with Lincoln:

You will find in a recent speech delivered by that able and eloquent statesman, Hon. Jefferson Davis, at Bangor, Maine, that he took the same view of this subject that I did in my Freeport speech. He there said:

If the inhabitants of any territory should refuse to enact such laws and police regulations as would give security to their property or to his, it would be rendered more or less valueless in proportion to the difficulties of holding it without such protection. In the case of property in the labor of man, or what is usually called slave property, the insecurity would be so great that the owner could not ordinarily retain it. Therefore, though the right would remain, the remedy being withheld, it would follow that the owner would be practically debarred, by the circumstances of the case, from taking slave property into a territory where the sense of the inhabitants was opposed to its introduction. So much for the oft repeated fallacy of forcing slavery upon any community.

Stephen Douglas, debate with Abraham Lincoln in Alton, Illinois, October 15, 1858, in Collected Works of Abraham Lincoln, vol. 3, ed. Roy P. Basler (New Brunswick, New Jersey: Rutgers University Press, 1953), 296.

11. Abraham Lincoln, debate with Stephen Douglas in Alton, Illinois, October 15, 1858, in Collected Works of Abraham Lincoln, vol. 3, ed. Roy P. Basler (New Brunswick, New Jersey: Rutgers University Press, 1953), 317.

12. Ibid., 318.

13. Abraham Lincoln, speeches in Columbus and Cincinnati, Ohio, September 16 and 17, 1859, in Collected Works of Abraham Lincoln, vol. 3, ed. Roy P. Basler (New Brunswick, New Jersey: Rutgers University Press, 1953), 430–31.

14. Obergefell v. Hodges, 576 U.S. 644 (2015); Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Etc., 515 U.S. 557 (1995).

15. Obergefell v. Hodges; West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943).

16. See Scalia’s concurrence in Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991), at 576, drawing on an earlier case in which “nude sunbathers challenging public indecency law claimed their ‘message’ was that nudity is not indecent.”

17. Katzenbach v. McClung, 379 U.S. 294 (1965).

18. Loving v. Virginia, 388 U.S. 1 (1967).

19. Abraham Lincoln, speech at Cooper Institute, New York, February 27, 1860, in Collected Works of Abraham Lincoln, vol. 3, ed. Roy P. Basler (New Brunswick, New Jersey: Rutgers University Press, 1953), 547–48, note 9.

20. “Let’s take a case a little bit more like ours, and—and it doesn’t involve words, but just a cake. It is Red Cross, and the baker serves someone who wants a red cross to celebrate the anniversary of a great humanitarian organization. Next person comes in and wants the same red cross to celebrate the KKK. Does the baker have to sell to the second customer? And if not, why not?” Neil Gorsuch, oral argument in Masterpiece Cakeshop, Ltd., et al., Petitioners v. Colorado Civil Rights Commission, et al., 584 U.S. ___ (2018), December 5, 2017, 84.

21. “If someone came in and said, I want a cake… to celebrate our wedding anniversary, and I want it to say November 9, the best day in history, okay, sells them a cake. Somebody else comes in, wants exactly the same words on the cake, he says: Oh, is this your anniversary? He says: No, we’re going to have a party to celebrate Kristallnacht. He would have to do that?” Samuel Alito, oral argument in Masterpiece Cakeshop v. Colorado Civil Rights Commission, December 5, 2017, 68.

22. Lincoln, speech at Cooper Institute, 549, note 9.

23. Ibid., 547–48.

Chapter 5: Are There Natural Rights?

1. As Wilson put it, the object was not to “acquire new rights by a human establishment,” but rather “to acquire a new security for the possession or the recovery of those rights, to the enjoyment or acquisition of which we were previously entitled by the immediate gift, or by the unerring law, of our all-wise and all beneficent Creator.” James Wilson, “Of the Natural Rights of Individuals,” in The Works of James Wilson, ed. Robert Green McCloskey (Cambridge, Massachusetts: Harvard University Press, 1967), no. 2, 585, originally published in 1804.

2. Cited in ibid., 587.

3. Ibid.

4. Abraham Lincoln, sixth debate with Stephen Douglas, at Quincy, Illinois, October 13, 1858, in The Collected Works of Abraham Lincoln, vol. 3, ed. Roy P. Basler (New Brunswick, New Jersey: Rutgers University Press, 1953), 245, 257.

5. Alexander Hamilton, Federalist no. 84.

6. I gave this argument a chance to breathe in Hadley Arkes, Beyond the Constitution (Princeton, New Jersey: Princeton University Press, 1990), chapter 4: “On the Dangers of a Bill of Rights: Restating the Federalist Argument.”

7. See Sedgwick’s telling remarks in Annals of Congress, 1st Congress, vol. 1 (August 15, 1789), 731.

8. Abraham Lincoln, fragment, in The Collected Works of Abraham Lincoln, vol. 4, ed. Roy P. Basler (New Brunswick, New Jersey: Rutgers University Press), 169, note 4. This was a fragment that Lincoln wrote for himself on the Constitution, the Union, and the Declaration in January 1861, before he was inaugurated.

9. Abraham Lincoln, speech at Cooper Institute, New York, February 27, 1860, in The Collected Works of Abraham Lincoln, vol. 3, ed. Roy P. Basler (New Brunswick, New Jersey: Rutgers University Press, 1953), 547–48, 541.

10. Immanuel Kant, Lectures in Ethics, trans. Louis Infield (New York: Harper & Row, 1963), 228.

11. See my own treatment of this issue, cast in the larger context of the properties of categorical moral truths: Hadley Arkes, First Things: An Inquiry into the First Principles of Morals and Justice (Princeton, New Jersey: Princeton University Press, 1986), 103–15.

12. See John Marshall, Address on the Constitutionality of the Alien and Sedition Acts, December 1798, in The Political Thought of American Statesmen, ed. Richard G. Frisch and Morton J. Stevens (Itasca, Illinois: Peacock Publishers, 1973), 99–116.

13. See Anontin Scalia in District of Columbia v. Heller, 554 U.S. 570 (2008): “Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

14. See Daniel Robinson, Toward a Science of Human Nature: Essay on the Psychologies of Mill, Hegel, Wundt, and James (New York: Columbia University Press, 1982), 93.

15. See Arkes, First Things, 165, note 11 and passim.

16. William Blackstone, Commentaries on the Laws of England (Chicago: University of Chicago Press, 1979), book 4, chapter 5, 66–67, originally published in 1769.

17. Abraham Lincoln, in last debate with Stephen Douglas in Alton, Illinois, October 15, 1858, in The Collected Works of Abraham Lincoln, vol. 3, ed. Roy P. Basler (New Brunswick, New Jersey: Rutgers University Press, 1953), 301, note 4.

18. See John Locke, Second Treatise on Civil Government, chapter 4 (“Slavery”) and chapter 5 (“Property”), paragraphs 22–5l.

Chapter 6: On Civil Rights: Theories in Search of a Principle

1. This argument on the wrong in principle of racial discrimination was first adumbrated in my essay “Civility and the Restriction of Speech: Rediscovering the Defamation of Groups” in Supreme Court Review 1974, ed. Philip B. Kurland (Chicago: University of Chicago Press, 1974). But the argument was drawn out more fully in my The Philosopher in the City (Princeton, New Jersey: Princeton University Press, 1981), 47–50, and it has since threaded through my other works—most notably in First Things: An Inquiry into the First Principles of Morals and Justice (Princeton, New Jersey: Princeton University Press, 1986), 97–99.

2. Beauharnais v. Illinois, 343 U.S. 250 (1952).

3. Quoted in Arkes, “Civility and the Restriction of Speech,” 253.

4. Quoted in Beauharnais v. Illinois, 300–301. Jackson also offered a review of the laws on criminal libel, still holding on in the states and still supported (though with eroding conviction in the Supreme Court) with Jackson’s rationale: Local governments are closer to the scene of the damages done to reputations and to the injuries wrought by inciting racial hatreds. Those local governments have the first responsibility in dealing with the damage and meting out punishments. Jackson argued that the federal courts should cede a large measure of deference to the authorities who are, as we might say today, the “first responders.” In this vein, see Jackson’s dissent in Terminiello v. City of Chicago, 337 U.S. 1 (1949), at 34–35.

5. Brown v. Board of Education, 347 U.S. 483 (1954).

6. “To separate [children in grade schools and high schools, children of] similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. The effect of this separation on their educational opportunities was well stated by a finding in the Kansas case by a court which nevertheless felt compelled to rule against the Negro plaintiffs: ‘Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law, for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system.’ ” Brown v. Board of Education, at 494.

7. Clark’s study was cited, along with other studies, in footnote 11 to the Court’s opinion in the Brown case. Kenneth Clark, “Effect of Prejudice and Discrimination on Personality Development,” Mid-Century White House Conference on Children and Youth, 1950. For a treatment of the flaws and contradictions in this study, see Hadley Arkes, “The Problem of Kenneth Clark,” in Commentary, November 1974, 37–46. For a fuller, more rounded analysis of the reasoning in Brown, see Richard Morgan, “Coming Clean about Brown,” City Journal, Fall 1996. Michael Uhlmann offered his own skillful account of the difficulties encountered by the justices as they sought to work through the rationales that could finally explain and justify the judgment they were about to reach. See his “The Road Not Taken: Why the Court Should Have Listened to Robert Jackson,” Claremont Review of Books, Summer 2004.

8. Palmer v. Thompson, 403 U.S. 217 (1971).

9. Loving v. Virginia, 388 U.S. 1 (1967), at 2.

10. See Arkes, First Things, 344–45.

11. See my treatment of this issue as part of the puzzle of “privacy” in the law in ibid., chapter 15, “Privacy and the Reach of the Law.”

12. Loving v. Virginia.

13. See Justice Stewart’s concurring opinion in Zablocki v. Redhail, 434 U.S. 374 (1978), at 392.

14. United States v. Windsor, 570 U.S. 744 (2013), holding invalid the Defense of Marriage Act of 1996, and Obergefell v. Hodges, 576 U.S. 644 (2015), holding invalid then the laws of marriage that confine marriage to one man and one woman.

15. Plessy v. Ferguson, 163 U.S. 537 (1896).

16. Loving v. Virginia, at 11, note 8.

17. Plessy v. Ferguson, at 559.

18. Ibid., 560.

19. Ibid., 561.

20. See Akhil Amar, America’s Unwritten Constitution (New York: Basic Books, 2012), 213. See also Hadley Arkes, Constitutional Illusions & Anchoring Truths (Cambridge, Massachusetts: Cambridge University Press, 2010), chapter 7, “And Yet… a Good Word on Behalf of the Legal Positivists,” on the case of Bob Jones University.

21. As a notable case in point, see McLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950).

22. Katzenbach v. McClung, 379 U.S. 294 (1964).

23. Ibid.

24. Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938).

25. From the interview of Cecil Partee, in Milton Rakove, We Don’t Want Nobody Nobody Sent (Bloomington, Indiana: Indiana University Press), 156.

26. See Plessy v. Ferguson, at 549, note 15.

27. Here I steal from myself, and with thanks from friends at Cambridge University Press borrow from my book Constitutional Illusions and Anchoring Truths: The Touchstone of Natural Law (2010), 65–68.

28. Regents of the University of California v. Bakke, 438 U.S. 265 (1978).

29. Ibid., notes 6 and 7 in Powell’s opinion.

30. Ibid., at 296–97.

31. “Race Relations,” Gallup, https://news.gallup.com/poll/1687/race-relations.aspx; see also Karlyn Bowman and Eleanor O’Neil, “Public Opinion on Affirmative Action,” American Enterprise Institute, June 23, 2016, https://www.aei.org/research-products/report/public-opinion-on-affirmative-action/; for an older piece, see Stuart Taylor, “Do African-Americans Really Want Affirmative Action?” The Atlantic, December 2002. Taylor reported on a survey sponsored by the Washington Post, the Kaiser Family Foundation, and Harvard University in the spring of 2001. The question was whether “race or ethnicity should be a factor when deciding who is hired, promoted, or admitted to college, or that hiring, promotions, and college admissions should be based strictly on merit and qualifications other than race or ethnicity?” Overall, only 5 percent of the sample expressed the view that “race or ethnicity should be a factor.” The surprising finding was that, of the 323 African Americans in the sample, only 12 percent said that “race or ethnicity should be a factor,” and 86 percent held to the view that admissions and hiring should be based strictly on merit and qualifications other than race or ethnicity. As Taylor summed it up, “By a ratio of 7-to-1, black respondents in this poll rejected racial preferences. The ratio was 12-to-1 among both Hispanic and Asian respondents.”

32. Abraham Lincoln, a fragment written around August 1858, in The Collected Works of Abraham Lincoln, vol. 2, ed. Roy P. Basler (New Brunswick, New Jersey: Rutgers University Press, 1953), 532.

33. See Parents Involved in Community Schools v. Seattle School District, 426 F.3d 1162 (2005), at 1222. And for the Supreme Court, see Parents Involved in Community Schools v. Seattle School District No. 1; Meredith v. Jefferson County Board of Education, 551 U.S. 701 (2007). Roberts offered a version of Judge Bea’s concluding line with only the slightest changes: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Chapter 7: Speech and the Erosion of Relativism

1. FCC v. Fox Television Stations, Inc., 567 U.S. 239 (2012).

2. Ibid., at 2314.

3. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).

4. Cohen v. California, 403 U.S. 15 (1971).

5. Rosenfeld v. New Jersey, 408 U.S. 901 (1972).

6. See Burger’s opinion in Paris Adult Theatre v. Slaton, 413 U.S. 49 (1973), at 67. Burger offered the possibility of a “ ‘live’ performance of a man and woman locked in a sexual embrace at high noon in Times Square,” and remarked that the performance would not be “protected by the Constitution [even if the two people] simultaneously engage in a valid political dialogue.”

7. Chaplinsky, at 569.

8. Cohen, at 25.

9. Ibid., at 24.

10. See G. E. Moore, “The Objectivity of Moral Judgment,” chapter 3 in Ethics (Ulan Press, 2012), originally published in 1912. See Thomas Reid, Essays on the Active Powers of the Human Mind (Cambridge, Massachusetts: MIT Press, 1969), 442, originally published in 1788. And see chapter 2, note 15 above.

11. Cohen, at 18.

12. Aristotle, Politics, 1253a.

13. Thomas Aquinas, Summa Theologica, I-II 96.2, Basic Writings of Saint Thomas Aquinas, vol. 2, ed. Anton C. Pegis (New York: Random House, 1945) 792–93.

14. See Hill et al. v. Colorado et al., 530 U.S. 703 (2000).

15. See the incomparable Judge Sprizzo in United States v. Lynch, 952 F. Supp. 167 (1997).

16. Matal v. Tam, 528 U.S. ____ (2017), at 1.

17. Leo Strauss, Natural Right and History (Chicago: University of Chicago Press, 1953), 2.

18. Terminiello v. Chicago, 337 U.S. 1 (1949).

19. Ibid., at 2.

20. Ibid., at 3–4.

21. Ibid., at 6.

22. R.A.V. v. City of St. Paul, Minnesota, 505 U.S. 377 (1992).

23. Terminiello, at 16.

24. Ibid.

25. Ibid., at 17–18, 20.

26. Ibid., at 22.

27. Ibid., at 23–24.

28. Ibid., at 26.

29. Gitlow v. New York, 268 U.S. 652 (1925).

30. Schenck v. United States, 249 U.S. 47 (1919).

31. See Jackson’s adoption of this argument in his dissent in Terminiello, at 26.

32. Terminiello, at 15.

33. R.A.V. v. City of St. Paul, at 379.

34. Ibid., at 380.

35. Ibid., at 393.

36. Ibid., at 385.

37. Ibid., at 396.

38. Ibid., at 391.

39. Ibid., at 422.

40. Ibid., at 415.

41. Justice White explained: “Our fighting words cases have made clear, however, that such generalized reactions are not sufficient to strip expression of its constitutional protection. The mere fact that expressive activity causes hurt feelings, offense, or resentment does not render the expression unprotected.” Ibid., at 414.

42. Chaplinsky, at 572.

43. Among other choice items were these: “Don’t Pray for the USA,” “Thank God for IEDs,” “Pope in Hell,” “Priests Rape Boys,” “God Hates Fags,” “You’re Going to Hell,” and “God Hates You.” See Snyder v. Phelps, 562 U.S. 443 (2011). Eight of the nine justices were content to fold these outbursts into the class of speech protected by the First Amendment. But see Justice Alito’s argument, holding on alone in dissent.

Chapter 8: The Conservatives and the Lure of Defensive Relativism: Spiraling Down

1. Matal v. Tam, 582 U.S. ___ (2017).

2. Ibid., at 1.

3. Snyder v. Phelps, 562 U.S. 443 (2011).

4. Ibid., at 1.

5. See Hadley Arkes, “Marching through Skokie,” National Review, May 12, 1978, 588ff.

6. Abraham Lincoln, Letter to Henry Peirce and Others, April 6, 1859, in The Collected Works of Abraham Lincoln, vol. 3, ed. Roy P. Basler (Newark, New Jersey: Rutgers University Press, 1953), 376.

7. Masterpiece Cakeshop, Ltd., v. Colorado Civil Rights Commission, 584 U.S. ___ (2018), concurring opinion by Justice Gorsuch joined by Justice Alito, 7.

8. Iancu v. Brunetti, 588 U.S ___ (2019).

9. Chisholm v. Georgia, 2 U.S. 419 (1793).

10. Thomas Reid, Essays on the Active Powers of the Human Mind (Cambridge, Massachusetts: MIT Press, 1969), 4–5, originally published in 1813–1815. Immanuel Kant pointed out that the concept of number is one of those things grasped a priori by any functional person, wherever that person may be found. I once suggested the example of a British ship landing at a South Sea Island in the eighteenth century, with three sailors going ashore to encounter men from a culture they never knew. Without knowing anything about the conventions of that local culture, do we think that the natives would understand the difference between one strange man standing there as opposed to three? Would we not suppose, as Kant would say, that the ordinary human creature would grasp the distinctions of one, many, and all—singularity, plurality, totality?

11. Iancu, at 1, 6, and 10.

12. Ibid., at 3.

13. Ibid, at 7.

14. Ibid., at 5–6.

15. Ibid., at 6.

16. Ibid., at 1.

17. Ibid., at 7–8.

18. See John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980), 74. The line was set down by John Finnis, but it was later sung by Robert George.

Chapter 9: Recasting Religious Freedom

1. See Eisenstadt v. Baird, 405 U.S. 438 (1972).

2. See Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014).

3. Bishop William Lori, “Our First, Most Cherished Liberty: A Statement on Religious Liberty by the United States Conference of Catholic Bishops Ad Hoc Committee for Religious Liberty,” March 2012. Bishop Lori’s argument took on special force in these passages:

“It is a sobering thing to contemplate our government enacting an unjust law. An unjust law cannot be obeyed. In the face of an unjust law, an accommodation is not to be sought, especially by resorting to equivocal words and deceptive practices. If we face today the prospect of unjust laws, then Catholics in America, in solidarity with our fellow citizens, must have the courage not to obey them. No American desires this. No Catholic welcomes it. But if it should fall upon us, we must discharge it as a duty of citizenship and an obligation of faith….

“An unjust law is ‘no law at all.’ It cannot be obeyed, and therefore one does not seek relief from it, but rather its repeal.

“The Christian church does not ask for special treatment, simply the rights of religious freedom for all citizens. Rev. King also explained that the church is neither the master nor the servant of the state, but its conscience, guide, and critic [emphasis added].”

I would record a special thanks to Thomas Sarrouf, my devoted and indefatigable aide in research, who managed to find these papers containing the passages I remembered, even as they continued to elude me.

4. John Paul II, Veritatis Splendor, Vatican, August 6, 1993, section 32.

5. John Courtney Murray, We Hold These Truths (Lanham, Maryland: Rowman and Littlefield, 2005), 63–64, originally published in 1960 by Sheed and Ward.

6. The Judiciary Committee of the Senate, in 1985, offered a survey of the leading texts on embryology and gynecology, and years later Ryan Anderson of the Witherspoon Institute would do an updating containing items of this kind:

Fertilization is a sequence of events that begins with the contact of a sperm (spermatozoon) with a secondary oocyte (ovum) and ends with the fusion of their pronuclei (the haploid nuclei of the sperm and ovum) and the mingling of their chromosomes to form a new cell. This fertilized ovum, known as a zygote, is a large diploid cell that is the beginning, or primordium, of a human being. Keith L. Moore, Essentials of Human Embryology….

The development of a human being begins with fertilization, a process by which two highly specialized cells, the spermatozoon from the male and the oocyte from the female, unite to give rise to a new organism, the zygote. Jan Langman, Medical Embryology, 3rd edition….

Zygote. This cell, formed by the union of an ovum and a sperm… represents the beginning of a human being. The common expression “fertilized ovum” refers to the zygote. Keith L. Moore and T. V. N. Persaud, Before We Are Born: Essentials of Embryology and Birth Defects, 4th edition.

[Emphasis in the original.] Ryan Anderson, “Life Begins at Fertilization,” Princeton University, https://www.princeton.edu/~prolife/articles/embryoquotes2.html.

7. See, for example, Reynolds v. United States, 98 U.S. 145 (1878), at 163, quoting James Madison, “Memorial and Remonstrance against Religious Assessments,” 1785.

8. Brackets in the original. See Hadley Arkes, First Things: An Inquiry into the First Principles of Morals and Justice (Princeton, New Jersey: Princeton University Press, 1986), 193.

9. Welsh v. United States, 398 U.S. 333 (1970); Arkes, First Things, 194n7.

10. Utah was admitted to the Union in 1896, and by 1904 the Church of Jesus Christ of Latter-day Saints barred new polygamous marriages. In a policy of civic prudence, the plural marriages then in place would not be disturbed. The partners in those marriages would gradually be taken away with time.

11. See Justin Dyer, “Reason, Revelation, and the Law of Nature in James Wilson’s Lectures on Law,” American Political Thought 9, no. 2 (Spring 2020): 26484.

12. John Paul II, Encyclical Letter: Fides et Ratio of the Supreme Pontiff John Paul II to the Bishops of the Catholic Church on the Relationship between Faith and Reason, Vatican, September 14, 1998.

13. Ibid., chapter 4, section 36.

14. Ibid.

15. Ibid., chapter 4, section 38.

16. Ibid., chapter 4, section 48.

17. Ibid., chapter 5, section 53.

18. Ibid., chapter 6, section 76.

19. Michael Novak, On Two Wings: Humble Faith and Common Sense at the American Founding (San Francisco: Encounter Books, 2002).

20. Ellis Sandoz, ed., Political Sermons of the American Founding Era, 1730–1805, rev. ed., vol. 1 (Indianapolis: Liberty Fund, 1998), 628–56, at 637.

21. Fides et Ratio, chapter 3, section 35.

22. James V. Schall, At the Limits of Political Philosophy: From “Brilliant Errors” to Things of Uncommon Importance (Washington, D.C.: Catholic University of America Press, 1996), 191.

23. Genesis 18:25, in The Five Books of Moses: A Translation with Commentary, trans. Robert Alter (New York: W. W. Norton, 2008), 89.

24. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 584 U.S. ____ (2018), concurring opinion by Justice Gorsuch, joined by Justice Alito, at 7.

25. See Abraham Lincoln, in the majestic Message to Congress in Special Session on July 4, 1861, in The Collected Works of Abraham Lincoln, vol. 4, ed. Roy P. Basler (New Brunswick, New Jersey: Rutgers University Press, 1953), 434–35.

26. Madison, “Memorial and Remonstrance.”

27. Harry V. Jaffa, “The Decline and Fall of the American Idea,” in The Rediscovery of America: Essays by Harry Jaffa on the New Birth of Politics, ed. Edward J. Erler and Ken Masugi (Lanham, Maryland: Rowman and Littlefield, 2019), 233.

28. See Richard Garnett, letter to First Things, October 2019, 3–4, and my response, 5–7.

29. Jaffa, “Decline and Fall of the American Idea,” 187.

30. Town of Greece v. Galloway, 572 U.S. 565 (2014).

31. Gunnar Gundersen, “God and Conscience: Is There an Objective Limit to Religious Freedom?” (summer fellowship faculty lecture and notes, James Wilson Institute for Natural Rights & the American Founding, Washington, D.C., August 3, 2018).

32. Winston Churchill caught this sense of the matter, as only a practiced political man could, in a commentary on Edmund Burke:

“A Statesman in contact with the moving current of events and anxious to keep the ship on an even keel and steer a steady course may lean all his weight now on one side and now on the other. His arguments in each case when contrasted can be shown to be not only very different in character, but contradictory in spirit and opposite in direction: yet his object will throughout have remained the same; his resolves, his wishes, his outlook may have been unchanged; his methods may be verbally irreconcilable. We cannot call this inconsistency. In fact it may be claimed to be the truest consistency. The only way a man can remain consistent amid changing circumstances is to change with them while preserving the same dominating purpose.”

Winston Churchill, “Consistency in Politics,” in Thoughts and Adventures (London: Butterworth, 1932), 39, cited by Harry Jaffa in his magisterial A New Birth of Freedom: Abraham Lincoln and the Coming of the Civil War (Oxford: Rowman and Littlefield, 2000), 125.

33. Fred Smith, “US Principles at Stake as Economy Keeps on Growing,” Financial Times, May 17, 2012, https://www.ft.com/content/017c512e-9f62-11e1-a455-00144feabdc0.

34. Obergefell v. Hodges, et al., 576 U.S. 644 (2015), brief of amicus curiae of Dr. Paul R. McHugh, et al., brief of amicus curiae, with Professor Gerard Bradley as Counsel of Record, April 3, 2015. McHugh relied here on the findings in Lisa Diamond, “Female Bisexuality from Adolescence to Adulthood Results from a 10-year Longitudinal Study,” Development Psychology 44, no. 1 (February 2008): 5–14.

35. For one of the earliest statements on this point, see Justice Samuel Chase in Calder v. Bull, 3 U.S. 386 (1798), at 388.

36. Hepburn v. Griswold, 75 U.S. 603 (1869), 624.

37. Gilardi v. U.S. Department of Health and Human Services (HHS), No. 13-5069 (D.C. Cir. 2013), at 17–18.

38. Ibid., at 26.

39. Cyril Korte v. Sebelius, No. 12-3841 (7th Cir., 2013); Grote v. Sebelius, 708 F.3d 850 (7th Cir., 2013), at 63.

40. Michaiah Bilger, “Poll Shows Majority Support Banning Abortions When Unborn Baby’s Heart Starts Beating,” LifeNews, August 16, 2021, https://www.lifenews.com/2021/08/16/poll-shows-majority-support-banning-abortions-when-an-unborn-babys-heart-starts-beating/.

41. Leo XIII, Libertas: Encyclical of Pope Leo XIII on the Nature of Human Liberty, Vatican, June 20, 1888, https://www.vatican.va/content/leo-xiii/en/encyclicals/documents/hf_l-xiii_enc_20061888_libertas.html.

42. “It is not impossible, in the sense of self-contradictory, that we should see cows fasting from grass every Friday or going on their knees as in the old legend about Christmas Eve.” See G. K. Chesterton, The Everlasting Man (1925), available at http://www.gkc.org.uk/gkc/books/everlasting_man.pdf. I want to thank my indispensable aide in research, Sean Tehan, who has cultivated an interest in Chesterton even as an undergraduate. He was able to track down the source long after I had forgotten just where, in G.K.C.’s vast and rollicking work, I had first read it.

43. We are living, as she wrote, “off the religious capital of a previous generation,” and “that capital is being perilously depleted.” Gertrude Himmelfarb, One Nation, Two Cultures: A Searching Examination of American Society in the Aftermath of our Cultural Revolution (New York: Alfred Knopf, 1999), 146. In an earlier lecture at the American Enterprise Institute, in 1995, she offered this reflection as an historian: “In retrospect, one might say that Victorian England was living off the moral capital of religion, and that post-Victorian England, well into the twentieth century, was living off the capital of a secularized morality. Perhaps what we are now witnessing is the moral bankruptcy that comes with the depletion of both the religious and the secular capital.” Gertrude Himmelfarb, “From Victorian Virtues to Modern Values,” American Enterprise Institute, February 13, 1995, https://www.aei.org/events/from-victorian-virtues-to-modern-values/.

44. Himmelfarb recalled that “when Darwin was asked what he himself believed to be the implications of his theory for religion and morality, he said that the idea of God was ‘beyond the scope of man’s intellect,’ but that man’s moral obligation remained what it had always been: to ‘do his duty.’ ” She went on to say that “Leslie Stephen, after abandoning the effort to derive an ethic from Darwinism, finally confessed: ‘I now believe in nothing, but I do not the less believe in morality…. I mean to live and die like a gentleman if possible.’ Frederick Harrison, the archpriest of English Positivism and agnosticism, when asked by his son what a man should do if he fell in love and could not marry, replied indignantly: ‘Do! Do what every gentleman does in such circumstances.’ And when his son persisted in wanting to know why love was proper only in marriage, Harrison could barely contain himself: ‘A loose man is a foul man. He is anti-social. He is a beast…. It is not a subject that decent men do discuss.” Ellipses in original. Gertrude Himmelfarb, “The Victorian Ethos before and after Victoria,” in Victorian Minds (Chicago: Ivan Dee, 1999), 290–91, originally published in 1952.

45. Abraham Lincoln, speech in Lewistown, Illinois, on August 17, 1858, in The Collected Works of Abraham Lincoln, vol. 2, ed. Roy P. Basler (New Brunswick, New Jersey: Rutgers University Press, 1953), 546.

46. Dred Scott v. Sandford, 60 U.S. 393 (1856), 550.

47. Hadley Arkes, Natural Rights and the Right to Choose (New York and Cambridge: Cambridge University Press, 2002), 1.

48. Locke v. Davey, 540 U.S. 712 (2004).

49. Ibid, at 2; see also ibid., at 6.

50. Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. ____ (2017).

51. Ibid., John Roberts’s opinion for the Court, at 11, 15.

52. At the time of this writing the Supreme Court has just extended the same rule in Carson v. Makin, 596 US. ____ (2022). The state of Maine made grants available to parents in school districts so small that they cannot sustain a high school of their own or readily contract with the high school of another district. Parents would be reimbursed in part as they sent their children to private schools. But because of the constitution of Maine, those grants would not be available to schools with a religious character. Chief Justice Roberts, writing for the Court, affirmed the reasoning that had finally taken hold in the case of Trinity Lutheran Church v. Comer, and he seemed to confirm a principle now becoming settled. But this time the liberal wing would not join. Justices Breyer and Kagan moved into dissent, along with Justice Sotomayor.

53. There has been a recent, encouraging move in another direction with Fulton v. City of Philadelphia, 593 U.S. ____ (2020). The Court took at least a first step in rescuing Catholic Social Services in Philadelphia, which was being denied a license and closed down in the enduring and sacred mission of finding parents for children because it would not place children with same-sex couples. The authorities preferred to shut down this valuable adoption service rather than accept a policy that signaled an unwillingness to extend moral acceptance to the homosexual life.

54. Ronald Knox, “Reunion All Around” in Essays in Satire (New York: Kennikat Press, 1968), 75–76, originally published in 1928.

55. Ibid., 76.

Chapter 10: The Moral Turn in Jurisprudence

1. The Holy Bible, King James Version, 2 Samuel 12:1–7.

2. See Nixon v. Administrator of General Services, 433 U.S. 425 (1977), at 472 (Brennan), 491 (Blackmun), 493 (Powell), and 486 (Stevens).

3. John Locke, Second Treatise on Civil Government: An Essay Concerning the True Original, Extent, and End of Civil Government, section 143, in Social Contract (New York: Oxford University Press, 1962), 85.

4. For a fuller account of this connection, see Hadley Arkes, Constitutional Illusions and Anchoring Truths: The Touchstone of the Natural Law (Cambridge: Cambridge University Press, 2010), 18–19.

5. Montesquieu, The Spirit of the Laws (Berkeley, California: University of California Press, 1977), preface, originally published in 1748.

6. Jean-Jacques Rousseau, The Social Contract, ed. Sir Ernest Barker (London: Oxford University Press, 1960), book 2, chapter 6, 172–73, originally published in 1762.

7. Samuel Johnson, “Essay on Milton,” in Lives of the Poets, originally published 1779–81.

8. See Wilson in Chisholm v. Georgia, 2 U.S. 419 (1793), at 458.

9. Paul Ramsey, “Reference Points in Deciding on Abortion,” in The Morality of Abortion, ed. John Noonan (Cambridge, Massachusetts: Harvard University Press, 1970), 72–73.

10. Ibid., 67.

11. Roe v. Wade, 410 U.S. 113 (1973), Brief for the State of Texas, October 19, 1971, at 18 and passim.

12. See Robert P. George and Christopher Tollefsen, Embryo: A Defense of Human Life (New York: Doubleday, 2008), chapter 2, especially 38 and 50.

13. Roe v. Wade, Brief for the State of Texas, 19–20.

14. Kelly v. Gregory, 282 App. Div. 542, 125 N.Y.S. 2d 696, at 697. Quoted in ibid. This and other rich material can be found in that remarkable brief prepared by the lawyers defending the laws in Texas in Roe v. Wade. It is even more worth seeing now than it was then.

15. Roe v. Wade, Rehnquist’s dissent at 173.

16. Doe v. Bolton, 410 U.S. 179 (1973), White’s dissent at 221–22.

17. Ibid., at 222.

18. Ibid.

19. Ibid., at 221.

20. Roe v. Wade, at 174, quoting Justice Cardozo in Snyder v. Massachusetts, 291 U.S. 97 (1934), at 105, with a line Cardozo would accent again three years later in Palko v. Connecticut, 302 U.S. 319 (1937).

21. Oliver Wendell Holmes, “Montesquieu,” in Collected Legal Papers, 258, cited by Walter Berns, The First Amendment and the Future of American Democracy (New York: Basic Books, 1976), 164.

22. Oliver Wendell Holmes to Harold Laski, March 4, 1920, in Holmes-Laski Letters, vol. 1, 249, cited in ibid., 167.

23. And marked by a “history” of abortion not only exposed later as quite fraudulent, but recognized as fraudulent at the time by one of the lawyers working to challenge the law in Texas. Young David Tunderman was a student at Yale Law School working with the legal team challenging the laws on abortion in Texas. He had become aware that there was something deeply flawed, to put it mildly, in the history of abortion in America served up by Cyril Means. In a memo to his team, he struck a style that would become familiar, accepting of the suppression of evidence that might get in the way of the hallowed cause:

Where the important thing to do is to win the case no matter how, however, I suppose I agree with Means’s technique: begin with a scholarly attempt at historical research; if it doesn’t work out, fudge it as necessary; write a piece so long that others will read only your introduction and conclusion; then keep citing it until the courts begin picking it up. This preserves the guise of impartial scholarship while advancing the proper ideological goals.

“Memo from David Tunderman to Roy Lucas… 5 August 1971,” cited by Justin Buckley Dyer in Slavery, Abortion, and the Politics of Constitutional Meaning (Cambridge: Cambridge University Press, 2013), 67.

24. I was not present at the dinner, but I have heard more than one account of the conversation from persons in—shall we say—the best position to recall what was said.

25. United States v. Vuitch, 402 U.S. 62 (1971).

Chapter 11: After the Overruling of Roe: The Natural Law Moment

1. Dobbs v. Women’s Health Organization, 597 U.S. ____ (2022).

2. “Abortion,” Gallup, January 9, 2022, https://perma.cc/DJ6A-M77K.

3. Micaiah Bilger, “Poll Shows 55% of Americans Support Heartbeat Bills Banning Abortions on Babies with Beating Hearts,” LifeNews, May 15, 2019, https://www.lifenews.com/2019/05/15/poll-shows-55-of-americans-support-heartbeat-bills-banning-abortions-on-babies-with-beating-hearts/.

4. Dobbs, Justice Alito, opinion of the Court, at 3, quoting Justice White’s dissent in Roe v. Wade, 410 U.S. 113 (1973), at 222.

5. Dobbs, Justice Alito, opinion of the Court, at 7.

6. Ibid., at 6–7.

7. Ibid., at 8.

8. Ibid., at 5.

9. Ibid, at 47.

10. Ibid., at 53.

11. Ibid., at 50. Here Alito was quoting from the plurality opinion in the famous Webster case, in 1989, when the Court seemed to be on the verge of overturning Roe and returning the issue of abortion to the political arena. See Webster v. Reproductive Health Services, 492 U.S. 490 (1989), at 519.

12. See Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986), at 795.

13. Dobbs, Justice Alito, opinion of the Court, at 44.

14. Judge Clement Haynsworth in Floyd v. Anders, 440 F. Supp. 535, at 439 (D.S.C. 1977).

15. See Anders v. Floyd, 440 U.S. 445 (1979).

16. See Ann McElhinney and Phelim McAleer, Gosnell: The Untold Story of America’s Most Prolific Serial Killer (Washington, D.C.,: Regnery Publishing, 2017), especially chapter 7.

17. The fuller story of the reasoning behind the bill and the steering of that bill through Congress is told in part as a memoir in my book, Natural Rights and the Right to Choose (New York and Cambridge: Cambridge University Press, 2002).

18. Cohens v. Virginia, 19 U.S. 264 (1821), at 384.

19. “Abortion, Roe v. Wade, and the Supreme Court: The Big Picture,” Wall Street Journal, June 24, 2022.

20. See Dobbs, Justices Breyer, Sotomayor, and Kagan, dissenting, at 2.

21. Dobbs, Jutice Alito, opinion of the Court, at 38.

22. Dobbs, Justices Breyer, Sotomayor, and Kagan, dissenting, at 26.

23. See James Wilson, “Of the Natural Right of Individuals,” in The Works of James Wilson, vol. 2 (Cambridge, Massachusetts: Harvard University Press, 1967), 585–91, originally published in 1804.

24. See Hadley Arkes, “On Overruling Roe,” First Things (March 2022), 35–40.

25. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), 982.

26. Roger Wertheimer, “Understanding the Abortion Argument,” Philosophy and Public Affairs 1, no. 1 (Autumn 1971): 67–95, at 84.

27. Abraham Lincoln, Appeal to the Border States: Proclamation Revoking General Hunter’s Order of Military Emancipation of May 9, 1862, in The Collected Works of Abraham Lincoln, vol. 5, ed. Roy P. Basler (New Brunswick, New Jersey: Rutgers University Press, 1953), 223.

28. Dobbs, Justice Alito, opinion of the Court, at 16–20.

29. Ibid., at 23–25.

30. Ibid., at 28.

31. Dobbs, Justices Breyer, Sotomayor, and Kagan, dissenting, at 14–15.

32. Dobbs, Justice Kavanaugh, concurring, at 1.

33. James Madison, The Federalist, no. 49.

34. John W. Davis, “Argument on Behalf of the Appellees in Briggs v. Elliott,” DC State Library, December 7, 1953, https://dc.statelibrary.sc.gov/bitstream/handle/10827/32143/FED_SC_Argument_on_Behalf_BvE_1953.pdf?sequence=1&isAllowed=y, 17–18. Briggs v. Elliott was one of the companion cases brought together under Brown v. Board of Education.

35. First two brackets in original, third bracket mine. Dobbs, Justice Alito, opinion of the Court, at 69.

36. Ibid., at 6.

37. Ibid., at 70.

38. Thomas Cooley, A Treatise on the Constitutional Limitations, 2nd ed. (Boston: Little, Brown, 1871), 356–57, quoted in Stuart Banner, The Decline of Natural Law: How America’s Lawyers Once Used Natural Law and Why They Stopped (New York: Oxford University Press, 2021), 206–7.

39. For a fuller account, see Hadley Arkes, The Return of George Sutherland: Restoring a Jurisprudence of Natural Rights (Princeton, New Jersey: Princeton University Press, 1994), 262–73. The case was Powell v. Alabama, 287 U.S. 45 (1933).

40. Stuart Banner, The Decline of Natural Law (Oxford: Oxford University Press, 2021), 206 and passim.

41. Palko v. Connecticut, 302 U.S. 319 (1937).

42. Ibid., at 325.

43. Ibid., at 327.

44. Ibid., at 326.

45. Griswold v. Connecticut, 381 U.S. 479 (1965).

46. Skinner v. Oklahoma ex. rel. Williamson, 316 U.S. 535 (1942).

47. Loving v. Virginia, 388 U.S. 1 (1967).

48. Dobbs, Justice Alito, opinion of the Court, at 32.

49. Ibid.

50. See Skinner v. Oklahoma.

51. Congressional Globe: Containing the Debates and Proceedings of the First Session of the Thirty-Ninth Congress (Washington, D.C.: Congressional Globe Office, 1866), part 1, at 322.

52. Richard Epstein, “Roe’s Awkward Departure,” Hoover Institution, May 9, 2022, https://www.hoover.org/research/roes-awkward-departure.

53. Joseph Lochner, Plaintiff in Error v. People of the State of New York, 198 U.S. 45 (1905).

54. Adkins v. Children’s Hospital of D.C., 261 U.S. 525 (1923).

55. See Justice Brown in Plessy v. Ferguson, 163 U.S. 537 (1896), at 545–46.

56. Ibid., at 548.

57. Griswold, at 505.

58. Ibid, at 507. “There is no single one of the graphic and eloquent strictures and criticisms fired at the policy of this Connecticut law either by the Court’s opinion or by those of my concurring Brethren to which I cannot subscribe—except their conclusion that the evil qualities they see in the law make it unconstitutional.”

59. Ibid., at 520–25.

60. Epstein, “Roe’s Awkward Departure.”

61. Dobbs, Justice Kavanaugh, dissenting, at 2.

62. Ibid., at 1–2.

63. Abraham Lincoln, Speech at Peoria, Illinois, on October 16, 1854, in The Collected Works of Abraham Lincoln, vol. 2, ed. Roy P. Basler (New Brunswick, New Jersey: Rutgers University Press, 1953), 278.

64. See Harry V. Jaffa in his classic Crisis of the House Divided: An Interpretation of the Issues in the Lincoln-Douglas Debates (Garden City, New York: Doubleday, 1959), 348.

65. See Richard Hofstadter, The American Political Tradition and the Men Who Made It (New York: Vintage Books, 1955), 132, cited in Harry Jaffa, “The Emancipation Proclamation,” Equality and Liberty (Claremont, California: Claremont Institute, 1999), 141, originally published 1964.

66. Dobbs, Justice Alito, opinion of the Court, at 50.

67. Thomas Reid, Essays on the Active Powers of the Human Mind (Cambridge, Massachusetts: MIT Press, 1969), 474, originally published in 1788.

68. Ibid., 442.