CHAPTER 3 The Ploughman and the Professor

In a kind of throwaway line at the very end of his opinion for the Court in Gibbons v. Ogden, that classic case on the Commerce Clause, Chief Justice John Marshall apologized to his readers for consuming so much time “in the attempt to demonstrate propositions which may have been thought axioms.” In a charming, revealing way, he assumed that all of his literate readers understood that certain anchoring axioms had to be in place before one could carry out a demonstration.

Part of the charm is that Marshall should worry that this exercise might have struck his educated readers as “tedious,” and yet he thought it to be quite necessary nevertheless:

It is felt that the tediousness inseparable from the endeavour to prove that which is already clear, is imputable to a considerable part of this opinion. But it was unavoidable. The conclusion to which we have come, depends on a chain of principles which it was necessary to preserve unbroken; and, although some of them were thought nearly self evident, the magnitude of the question, the weight of character belonging to those from whose judgment we dissent, and the argument at the bar, demanded that we should assume nothing.¹

Marshall understood that these foundational cases early in the legal life of the new republic offered occasions for teaching. And what he taught on this occasion has a lingering relevance for the nature of jurisprudence and the vocation of judging. For what Marshall taught here could have been applied to any judgment rendered by an official body with the force of law: that it can never be out of season to take the time to trace one’s judgment back to those anchoring truths or axioms on which a judgment ultimately rests.

Marshall was hardly alone among the Founders in his grasp of “axioms” and the logical properties of “propositions.” Nowhere was that point confirmed with more elegance and economy than by Alexander Hamilton in the introduction he struck off for Federalist no. 31. The subject of that paper was taxation, and in the course of his essay Hamilton worked his way to a judgment that would hardly be different from judgments that might be reached in our own day by those two worthy managers in the Senate, Mitch McConnell and Chuck Schumer. But any disinterested reader, simply looking at the text, would notice at once some strikingly different furnishings of mind. For this is how Hamilton put matters in place:

In disquisitions of every kind there are certain primary truths, or first principles, upon which all subsequent reasonings must depend. These contain an internal evidence which, antecedent to all reflection or combination, command the assent of the mind…. Of this nature are the maxims in geometry that the whole is greater than its parts; that things equal to the same are equal to one another; that two straight lines cannot enclose a space; and that all right angles are equal to each other. Of the same nature are these other maxims in ethics and politics, that there cannot be an effect without a cause; that the means ought to be proportioned to the end; that every power ought to be commensurate with its object; that there ought to be no limitation of a power destined to effect a purpose which is itself incapable of limitation.²

Hamilton touched here on the understanding of things we may grasp, as the saying goes, as per se nota, or as true in themselves. The clearest example has been that anchoring axiom in the Laws of Reason that “two contradictory propositions both cannot be true.” Any attempt to deny that proposition must fall into a contradiction that dissolves in gibberish.

As I remarked earlier, the proverbial Man on the Street may not have on his lips the word “axiom” or the Law of Contradiction, but he must be acutely aware of cases where he has been told things quite at odds with one another; and he certainly knows that he cannot be and not be at the same time. As Bertrand Russell remarked, we know that a tree cannot be a tree and not a tree at the same time, and when we assert something about that tree, we are not giving a report on the state of our mind or merely about what we ourselves perceive or grasp. We are giving, also, an account of the state of things in the real world.³

The first principles of the Natural Law may be grasped precisely in this way, by ordinary folk, before the brew of “theories” that entrances the minds of people dabbling in “higher education.” Thomas Jefferson caught the sense of the matter quite aptly when he remarked in a letter to Peter Carr in August 1787 that one could “state a moral case to a ploughman and a professor. The former will decide it as well, and often better than the latter, because he has not been led astray by artificial rules.”⁴ Lawyers these days may not be as apt to see things through the commonsense moral reasoning of the Natural Law because they have been diverted, with their minds truly formed by theories—what Jefferson meant by those “artificial rules.” And they don’t see that the precepts of Natural Law are readily understood because they are bound up with the things that ordinary people readily know, the things they can grasp, as Hamilton said, as true per se nota, as true in themselves.

In my own experience there has been no clearer confirmation of that point, no clearer example of the reasoning of the Natural Law—and no example so readily and instantly understood—as that fragment that Lincoln wrote for himself, when he imagined himself engaged in a conversation with an owner of slaves. He was putting the question of how it could be justified to make a slave of a black man:

You say A. is white, and B. is black. It is color, then: the lighter having the right to enslave the darker? Take care. By this rule, you are to be slave to the first man you meet, with a fairer skin than your own.

You do not mean color exactly?—You mean the whites are intellectually the superiors of the blacks, and therefore have the right to enslave them? Take care again. By this rule, you are to be slave to the first man you meet, with an intellect superior to your own.

But, say you, it is a question of interest; and, if you can make it your interest, you have the right to enslave another. Very well. And if he can make it his interest, he has the right to enslave you.⁵

The upshot was that there was nothing one could cite to remove black people from the circle of rights-bearing beings that could not be cited to justify the enslavement of whites as well. There was nothing esoteric here. What Lincoln offered was simply a model of principled reasoning. Once again, as Aquinas said, the divine law we know through revelation, but the Natural Law we know through reasoning that is accessible to human beings as human beings—the kind of reasoning that is “natural” to beings with the capacity to enter into arguments. Lincoln’s argument could be understood across religious divisions—it could be understood by Presbyterians, Baptists, Catholics, and even atheists. And it could be understood by people who had not been burdened with a college education. That was what Jefferson meant when he said that the ploughman could be as clearheaded as the professor in reasoning through a serious matter of right and wrong.

For many years, some of us have drawn on precisely the same mode of principled reasoning to show that the task of deliberating seriously about abortion would not involve an appeal to religious “belief.” The question may be raised, in the style of Lincoln, in this way: Why is the offspring of Homo sapiens in the womb anything less than a human being? It doesn’t speak? Neither do deaf mutes. It has yet no arms or legs? Well, other people lose arms or legs without losing their standing as human beings to receive the protections of the law. There is nothing one could cite to disqualify the child in the womb as a human being that would not apply to many people walking around, well outside the womb. Nowhere in this chain of reasoning is there an appeal to faith or revelation. In other words, one doesn’t have to be Catholic to understand this argument—and that has been precisely the teaching of the Church, that this is not a matter of “faith” and “belief,” but a matter to be weighed with the evidence from embryology and the principled reasoning of the Natural Law.

It has been fashionable, I know, even in conservative quarters, to think the principles of Natural Law must be rather hazy ideals hovering in the sky, sentiments rather than propositions that can be judged true or false. But putting aside the logical problems that afflict that view, we would find, if we looked closely, that there is not the slightest disagreement about the key precepts of the Natural Law. Indeed, they are so woven into our practical judgments that we may hardly even be aware that we are using them. For they involve, in J. Budziszewski’s memorable line, those things “we can’t not know.”⁶

But what kinds of things, critical to our law, do ordinary people understand in that way? Well, as I have noted, even ordinary people readily grasp that anchoring axiom of the laws of reason, the Law of Contradiction. They know that they cannot be and not be at the same time. Even people without much formal education will often be quick to catch characters who tell them conflicting stories—and catch on without much awareness that they are grasping an anchoring truth called the Law of Contradiction.

But apart from that anchoring point, I would move to two axioms that thread through our practical judgments in the law at every level, and that may supply the grounds of a large portion of the judgments we need to reach in the most controversial cases in our constitutional law. The first, to which I have alluded already, is the axiom that James Wilson and Thomas Reid regarded as the first principle of our moral and legal judgment. And again we can approach the problem through a question we could put to that proverbial Man on the Street:

What do we guess he would say if he learned that Jones, accused of a serious crime, was in intensive care and recovering from surgery at the time the crime was committed? Or that Jones was heavily medicated at the time and had no firm control of himself? Or that Jones had not been born when the crime had taken place?

Does anyone doubt that the ordinary man, undistracted by theories, would quickly say that of course Jones could not have been guilty of the crime, that he should not be tried or convicted? That is to say, virtually everyone would back into the proposition that Thomas Reid and Kant, in different ways, took as the first principle of moral judgment: that we don’t hold people blameworthy or responsible for acts they were powerless to effect. As Kant recognized, it makes sense to cast moral judgments of praise or blame on people only in the domain of freedom, where people have the active power to cause their own acts to happen. As Thomas Reid put it, “To call a person to account, to approve, or disapprove of his conduct, who had no power to do good or ill, is absurd. No axiom of Euclid appears more evident than this.”⁹

That axiom forms the ground of the insanity defense, but it also explains the deep wrong in racial discrimination. For the reigning assumption there is a version of “determinism”: in this instance, that we are “determined” or controlled in our conduct most critically by race. And so, if we know the race of any person, people may casually assume that they are in a position to draw moral inferences as to whether they are dealing with a good or bad person. We have seen judges writing in that vein about people being punished, in effect, for their race—for conditions they were powerless to control. The then justice Rehnquist observed once about resident aliens, barred from certain privileges before they became citizens, that they would be, in effect, “a minority group, like blacks or Orientals, [bearing an] identifiable… status over which the members are powerless.”¹⁰ But that same principle applies in many other situations where people, for various reasons, may not be in full control of themselves. Of course, there may be the most difficult factual questions as to whether Jones was so deeply under medication or hypnosis, or so incapacitated, that he could not have performed that burglary. All of these things are matters quite “contingent” on the circumstances, and maddeningly variable in their possibilities. But the decisive point is the one thing in this mix that is never variable, never contingent, never open to question: that if Jones really was powerless to effect the acts in question, he cannot be judged blameworthy and responsible for this wrong. That principle will never cease to be true under any circumstance. It will be the one thing remaining stable—and readily grasped—even while everything else may be in doubt.

How many such propositions do we have? More than people seem to realize. From Reid’s anchoring first principle one can draw out a skein of implications with practical bearing on the law. I would offer here just one thread that can be drawn out, one whose import for our law may be recognized instantly. John Stuart Mill pointed out that we stop using the language of “like” and “dislike” and start using the language of “right” and “wrong” when we think that “a person ought to be punished in some way….”¹¹ But the corollary of that proposition is that we should visit punishment only on wrongdoers. If we begin by respecting that difference between innocence and guilt, we insist that the evidence for wrongdoing should be tested, in a demanding way, with the canons of reason, rather than extracting a confession by pummeling a suspect or having him run over hot coals. And as we follow that logic further down the line, we draw the inference that people accused of crimes should have access to the evidence and witnesses against them for the sake of rebutting them, and in rebutting them arrive at a verdict that is substantively accurate in distinguishing between innocence and guilt—between those who are deserving or undeserving of punishment. By this moral logic, a person does indeed have a right “to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him”—he would have that right in principle even if it had not been set down in the Sixth Amendment. If it had not been set down, it is entirely possible that it would have been “discovered” by a judge who was drawing out the implications contained in the logic of the “due process of law”—and he would not have been wrong. But to put it even more sharply, if you follow me here, this right would be implicit in the very logic of the rule of law even if there were no Constitution.

Now we are quite aware that juries and judges make mistakes, and they may also be corrupted. We know that justice is not always done even when the rules in place are the right ones. And yet none of that dislodges our conviction that anything that calls itself the rule of law will have to be a system in which people accused of crime, in ordinary criminal trials, have access to the witnesses and evidence brought against them in order to have the chance to rebut them. But to say that is to say that our commitment to these principles is categorical, quite independent of whether we think that they produced the right or the wrong result in any particular case before us.

What I’ve been describing here is a discipline of judgment as simple as it is tight. We begin with things that are grasped per se nota, as necessary—as with the principle that we may not hold people blameworthy or responsible for acts they were powerless to effect. With short steps, we draw out the implications that arise simply, and with the same necessary force, from the very logic of law and moral judgment—and we arrive at such things as the right of the accused to see the evidence and witnesses posed against him.

One of my favorite jurists, Justice George Sutherland, worked in this way, with short steps all connected to that axiom of respecting the difference between innocence and guilt. In the classic case of Patton v. United States in 1930, the defendants had been accused of bribing a Prohibition agent. But during their trial, one juror, in a panel of twelve, had become ill. A mistrial might have been declared, but the defendants waived their interest in a jury of twelve and accepted a verdict by a jury of eleven. The judgment of that jury ran against the defendants, who soon appealed, claiming that they had been improvident in making their own waiver.

For Sutherland, the correct judgment in this case could be settled through a string of propositions that began with the right of a defendant to enter a plea on his own guilt or innocence. That right could be traced back to that moral logic underlying the law: We are justified in inflicting punishment only on the guilty, and the purpose of a trial is to use the canons of reason in the most strenuous way to test evidence and make accurate distinctions between the innocent and the guilty. But who is obliged to offer evidence that can save an innocent man from being punished unjustly? The answer, coming in a moral voice, is anyone and everyone. That same logic holds as well for the defendant accused of the crime. If there is a right on the part of the accused to plead his innocence, there must also be a right for him to plead guilty. If he does not speak the plain truth, he would become complicit in punishing an innocent person in his place. The right to plead guilty must entail then the right to waive his trial (by making the trial unnecessary). But if there is a right to waive a trial, that right must entail the right to waive a trial by jury. And if there is a right to waive all twelve members of a jury, then it must entail the right to waive just one juror on a panel of twelve. Patton may have guessed wrong in weighing his chances, but as Sutherland showed, the arrangements violated nothing in the Constitution or the principles of law.¹²

When judges work in this way, they take as their craft and their vocation the discipline of finding an anchoring ground of principle for their judgments in one of those axioms or necessary truths. From there, they can proceed, as Sutherland did in this case, by drawing out the implications that arise from those categorical truths. As James Wilson reminds us, any implication drawn accurately from a necessary truth must itself be a necessary truth. Sutherland, as a jurist, would look for that anchoring ground and the principles that could be drawn from those axioms. But nothing in those principles could possibly tell judges the “right price” for a pair of pants, the right number of divisions in breaking up AT&T, or the standards to govern wage-price controls. None of these conclusions arise as implications from the string of underlying first principles. The quick test for identifying principles is the question, “Is it necessarily true that…?” Is it necessarily true that real estate values will improve if Whole Foods moves into the neighborhood? In one case, our friend Judge Janice Rogers Brown had to deal with the question of whether it was the mark of some serious wrongdoing that the Hein Hettinga company was able to market milk at 20 cents less a gallon in Southern California. Was that really enough to constitute a “disorderly market condition” that the law has any justification in barring or even punishing?¹³

Judge Brown took the occasion to look back on the long run of cases, from the New Deal to our own day, that disparaged “economic liberty” as a freedom of lesser rank. That kind of freedom was readily overridden as judges sustained regulations that had at times only a fictive relation to any “good” that the government professed to seek. The Hein Hettinga case offered a fine opportunity to look back at the New Deal and the attempt to impose price controls in aid of farmers. In 2006 the U.S. secretary of agriculture put forth a rule that bore on the “producer-handlers” of milk. These handlers drew in milk from the farmers who produced it and then marketed the milk, perhaps in places quite distant from the producer. The new rule seemed to be aimed directly at the Hein Hettinga company. It required a producer-handler who produced over 3 million pounds of fluid milk per month within a certain marketing area to compensate the farmers if the milk went on to be marketed at a price notably higher than the price paid by the handlers to the producers!

Judge Brown brought back a classic case from the New Deal, Nebbia v. New York, in which the Court had sustained an outlandish policy of price controls on milk. The state had imposed a price of 9 cents for a quart of milk. Leo Nebbia had the effrontery to offer two quarts of milk for 18 cents, plus a loaf of bread!¹⁴ In the case of Hein Hettinga, Judge Brown brought back the common sense once grasped readily by judges experienced in the world: that there was no principle that could tell us the proper price in nature for a quart of milk. But the case also revealed, to Brown, a less than lovely truth about our politics: Controls of this sort are not easily challenged and displaced through the democratic process because the interests gathered around the business of farming will tend to be much more influential in local legislatures than the random discomforts of the public. Brown was moved to cite the irascible H. L. Mencken: “Government is a broker in pillage, and every election is a sort of advance auction sale of stolen goods.” And with characteristic flair, she pronounced her own, muted anathema: “The Hettingas’ collision with the [Milk Regulatory Act of 2005] reveals an ugly truth: America’s cowboy capitalism was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers. And the courts, from which the victims of burdensome regulation sought protection, have been negotiating the terms of surrender since the 1930s.”¹⁵

Judge Brown was going back to the kind of elementary or foundational reasoning that Justice Sutherland had drawn on in a compelling way when he struck down the law for minimum wages for women in the classic Adkins case in 1923.¹⁶ That case has been roundly condemned along with Lochner v. New York.¹⁷ It was taken as an example of conservative judges defending cold natural rights against the earnest effort of liberal majorities to experiment in the cause of “social justice.” But that fashionable interpretation has preserved a comfortable abstraction, quite detached from the persons suffering real injuries in these cases. What has gone unseen for years in the Adkins case is that Sutherland was going to the rescue of Ms. Willie Lyons, who was operating an elevator in the Congress Hotel in Washington, D.C. Ms. Lyons appreciated her job and wanted to keep it. She was earning $35 a month plus two meals a day. It was the best job, she said, that she was able to find, and her employers were quite willing to keep her in that job. But under the new laws, they could employ a woman in that job only for a wage of $72.50 per month. And yet the laws that sought to cast protections over women in this way cast no such protections over men. Men were free to take jobs at the going market rate, which turned out to be… $35 a month and two meals per day. In other words, a law passed out of tenderness for the protection of women would now work systematically to replace women with men.

My late friend Justice Scalia came to accept the consensus that took hold even among the conservative judges as they made their peace with the vast alterations of the law that came with the New Deal. And so, while he thought that the minimum wage was, as he said, a crazy idea, he found nothing unconstitutional in it. And yet with reasoning as primary—and as compelling—as the reasoning I’ve marked off here, Justice Sutherland made the powerful case that schemes of wage-price controls—and, by implication, rent controls—were indeed unconstitutional. He offered no judgments on whether these policies were likely to be salutary or destructive. He did not argue about whether the minimum wage would cut out jobs at the entry level. His argument simply showed what was wrong in principle with wage-price controls, even if one claimed on occasion that they happened to “work.”

One way or another these policies would seriously abridge personal freedom—they were based on mere theories that were deeply untenable, propositions that simply could not be true of necessity. From the fact that a person is a woman, we have no way of determining what income she would need to preserve her morality and avoid falling into prostitution. We do not know whether she is a widow or a single mother trying to support a family; whether she is a teenager trying to earn some spending money and get experience in a job or whether she is an heiress who does not need the money. And from the fact that a man falls into the class of an employer, whether in a small family business or a corporation, we have no basis for saying that he is capable of paying any wage stipulated by central authorities for any job. As Sutherland put it: “The law is not confined to the great and powerful employers but embraces those whose bargaining power may be as weak as that of the employee. It takes no account of periods of stress and business depression, of crippling losses, which may leave the employer himself without adequate means of livelihood.”¹⁸

Nor should anyone leap to the conclusion that no menial job, offering experience and spending money, should be offered by an employer unless he can pay enough to sustain a whole family. In the case typically made for the minimum wage, the employer is cast as a skinflint or exploiter who could deliver any of his workers from financial straits if he would only summon compassion enough. But as Sutherland put it, “Certainly the employer by paying a fair equivalent for the service rendered, though not sufficient to support the employee, has neither caused nor contributed to her poverty. On the contrary, to the extent of what he pays he has relieved it.”¹⁹

But on that central claim for the law, on the matter of guarding the morality of the working woman, Sutherland observed that “the relation between earnings and morals is not capable of standardization. It cannot be shown that well-paid women safeguard their morals more carefully than those who are poorly paid. Morality rests upon other considerations than wages.”

Here Sutherland was making the same point that would be decisive in the ruling made two decades later by Justice Jimmy Byrnes and his colleagues in Edwards v. California (1941). In that case California had sought to bar the migration of indigent persons into the state during the Depression. Byrnes remarked that “poverty and immorality are not synonymous.” In his concurrence, Justice Jackson put precisely the same point in another way when he said that “California had no right to make the condition of Duncan’s purse” the basis of moral inferences about him, barring him from the state—and “punishing one who extended him aid”:

We should say now, and in no uncertain terms, that a man’s mere property status, without more, cannot be used by a state to test, qualify, or limit his rights as a citizen of the United States. ‘Indigence,’ in itself, is neither a source of rights nor a basis for denying them. The mere state of being without funds is a neutral fact—constitutionally an irrelevance, like race, creed, or color.²⁰

Both of these judges were backing into the second anchoring principle I would draw out here—another one of those foundational principles so true and so necessary that we are hardly even aware of them. The proverbial Man on the Street, again, would grasp the point at once. What do we imagine he would say if we put this question to him: From the fact that someone is tall or short, heavy or thin, that he is darker or lighter, or that he stutters, or that he is deaf—can you make any inferences as to whether you are dealing with a good or a bad man, who deserves to be welcomed or shunned, rewarded or penalized? The common sense of the matter, grasped by most people, might be explained by philosophers in this way: We are dealing here with attributes that are wholly wanting in moral significance in the sense that we cannot impute to any one of these features—height, weight, clarity of speaking or hearing—a “deterministic” force controlling or determining a person’s moral character. We simply cannot draw any moral inferences from them.

To recognize this point is to recognize a truth anchored in our nature, and this reasoning threads through many of our cases without our quite realizing it. One of the most dramatic examples we can offer is that of the Baby Jane Doe case on Long Island in the 1980s.²¹ The case involved an infant afflicted with “multiple birth defects.” The most serious among them was spina bifida, a condition in which the spinal cord and the surrounding membranes are exposed; microcephaly, an unusually small head; and hydrocephalus, the accumulation of fluid in the cranial vault. The spina bifida produced, in turn, other deficits in sensory functions, including the control of the legs and bladder. Most of the conditions could be remedied or ameliorated through surgery, especially if the operations were performed soon. The child was transferred to a university hospital for corrective surgery, but her parents finally withheld the surgery that was necessary to keep their child alive. A third party sought to intervene as a guardian for the child, to direct the hospital to perform the surgery. But that effort was blocked in the courts in New York. The issue made its way through local courts to the federal Department of Health and Human Services. At this point the Reagan administration was engaged, and eventually it went to court. The administration did not insist that there was an obligation to operate on the child if the surgery would be futile. But the administration sought the papers in the case to find out whether the decision to withhold care had hinged on a medical judgment—or on something else. Judge Ralph Winter pointed out, in a lower court, that a decision to withhold medical treatment of a child because the child was, say, too dark or black, would not be a medical decision.²² His ringing, instructive dissent is worth quoting at length these many years later:

The government has never taken the position that it is entitled to override a medical judgment. Its position rather is that it is entitled under Section 504 [of the Rehabilitation Act] to inquire whether a judgment in question is a bona fide medical judgment. While the majority [of the Court of Appeals] professes uncertainty as to what that means, application of the analogy to race eliminates all doubt. A judgment not to perform certain surgery because a person is black is not a medical judgment. So too a decision not to correct a life-threatening digestive problem because the infant has Down’s syndrome is not a bona fide medical judgment. The issue of parental authority is also quickly disposed of. A denial of medical treatment to an infant because the infant is black is not legitimated by parental consent. Finally, once the legislative analogy to race is acknowledged, the intrusion on state authority becomes insignificant.

The logic of the government’s position on these aspects of the case is thus about as flawless as a legal argument can be.²³

If the decision in the case of Baby Jane Doe hinged on the judgment that a life afflicted with Down’s syndrome and spina bifida was a life not worth living—that anyone bearing those conditions could be rightly consigned to death by withholding medical care—that was not a medical judgment but a moral judgment. It was a moral inference about a person on the basis of a characteristic—a disability—that cannot possibly establish whether we are dealing with a person who is incapable of living a life of good character and therefore deserves to die. Thus it was critical to know the grounds on which the judgment pivoted. The only way to gauge that matter was to get access to the records, and that is what the Reagan administration sought, unsuccessfully.

Now the question is whether the distinctions that Judge Winter was offering make sense to the reader: that there is a critical difference between a medical judgment and a moral judgment, that the moral judgment in this case was drawn wrongly from attributes that cannot possibly determine anything of moral significance, and that nothing in the disability of this baby can bear on the question of whether the child had a life worth living. If all of that makes sense, I submit that the decisive point here is simply grounded in the “mint” of our human nature. It is one of those inescapable facts in the way we are constituted: these attributes—height, weight, color, deafness, spina bifida—are powerless to determine any judgment on the moral state of any person. When Judge Winter remarked, in a statement truly rare in the courts, that the government’s position in this case was “about as flawless as a legal argument can be,” it is worth pointing out that the argument was indeed flawless—and compelling—because it was grounded in a necessary truth. It was grounded in what I would point out as nothing less than an anchoring axiom of the Natural Law. The question then naturally presents itself: If we shifted the locale—if the hospital were not in Long Island, but in Tehran or Nairobi—would the judgment be any different? Would it not be just as wrong, in any of these places, distant in space or time, to withdraw medical care on the ground that a life afflicted with spina bifida or Down’s syndrome is a life not worth living?

If we recognize that simple point, we recognize that this judgment of ours does not reflect simply some ethic that prevails in this tribe of Americans. The judgment is grounded in nature, in the laws of reason themselves, in truths that can be grasped by any functional person. And there is nowhere in the world, then, where these principles would not hold true. Without any sense of astonishment—or any sense we are doing it—we would find ourselves backing again into the Natural Law. But at the same time, when we consider how these principles bear on a problem like that of withholding the medical treatment from a child with Down’s syndrome, then we can see that, in striking contrast to the cliches we have often heard, there is nothing the least bit foggy about these principles of Natural Law. They bear on cases in a precise and concrete way. There is nothing inscrutable about them. And they do not suddenly become woolly or incomprehensible to any man if he is suddenly clothed with the robe of a judge. To those who say that judges should be cautious before they draw upon those axioms of reason forming the ground of the law that will always be there, I would say, why would you tell us that, once a man becomes a judge, he cannot understand what any functional person can understand?

There is another lesson worth noting for those of us who worry about judges flying untethered, detaching themselves not only from the text of the laws and the Constitution but from the canons of moral reasoning altogether. Judges who reason through the Natural Law as I have sketched it out here confine themselves to the narrow task of drawing out the logical implications that flow from the very idea of law, and of what it means to cast a judgment on guilt and innocence, right and wrong. They deal in axioms; they don’t traffic in making predictions about what policies may prove salutary or calamitous. Judges who have absorbed this discipline are more likely to have a sharper sense of the boundaries that confine judges to judgments that are indeed more distinctly jural. They will not presume to tell us just how long a residence requirement is warranted before a community is obliged to pay for a publicly funded higher education. Or whether a community should fund the education of the children of illegal immigrants. Those are judgments that depend on the wealth and generosity of the community, and they should be made by politicians who have a closer connection to the conditions and sentiments of their own community. The standards for those judgments are not contained anywhere in the kit available to judges.

Conservatives have recoiled from the spectacle of liberal judges casually invoking a higher law as they blithely install as law the policies that have won the hearts of progressives. But if we have the example of judges reaching zany conclusions with affectations of moral reasoning, the apt remedy, surely, is to show where their reasoning is specious and wrong. And yet some conservatives think they have struck upon the genius of countering this vice they impute to the liberals: they would simply avoid moral reasoning altogether. And yet could it really be possible that judges, pronouncing on matters that are rightful or wrongful, can ever avoid reasoning about the standards that govern our judgments of right and wrong? To ask whether judges can actually get through their day without touching those axioms of reason, the very ground of the Natural Law, is rather like asking: Can I order the coffee without using syntax? The judges discover, with that character in Molière, that they have been speaking prose all their lives. They’ve been relying on the precepts of the Natural Law without the least awareness that those principles have been in play. Judges persistently have to move beyond the text of the Constitution in drawing on the principles that explain their judgments.²⁴ One way or another, they are all doing it. The only question is whether it will be done well or badly.

In the fall of 2002, I was invited to one of our leading schools of law to give a talk on my newly published book, Natural Rights and the Right to Choose. I had originally meant to title the book The Genteel Treasons of the Political Class: an account of how a hefty portion of our political class, especially in the courts, had been gradually talking themselves out of the moral premises of the regime in which they had risen to high levels of authority.²⁵ But my beloved editor at Cambridge University Press, Lewis Bateman, suggested a title far more apt by bringing together the two leading strands of argument in the book: namely, that as people came down decisively on the side of their “right to choose” abortion, they had to detach themselves quite as decisively from the moral logic that attaches to natural rights. And so even if there really were such a thing as a “right to abortion,” it would be stripped of the deep moral logic we would wish to attach to anything we regard seriously as a “natural right.” It would be rather more like the “right to use the squash courts,” which could be revised or taken away as it suited the people who bestowed that right in the first place.

Of that logic of natural rights I will say more in the pages that follow. Here I would simply return to that night at the law school in Manhattan, where I was making the case anew for Natural Law. Following the lecture, the dean gave me a dinner, joined by members of the faculty. One professor offered this historical point: he thought it suggestive that, in the early days of the republic, almost nothing was said by the judges on natural rights or Natural Law, at least not when they were writing their opinions. On hearing my account of this conversation, my friend Daniel Robinson remarked, “Yes, and they said little about the alphabet either.” Natural Law was simply woven into everything they were doing, so fundamental that it did not need to be explicitly named.

Only much later would it occur to me that what I had encountered here may have been a version of what the philosopher Gilbert Ryle named a “category mistake,” a mismatching of things that misleads.²⁶ (“She arrived in a sedan chair—and a veil of tears.”) Let’s suppose that I had taken a friend visiting Amherst to see the lovely Babbott room where I taught; that I had taken him also to the library, to the earth sciences building, to the gym, to the administration building, to the fetching social center. And later, when we returned to my house and were having drinks, he said, “But I thought you were going to show me the college.” I then would have said politely, to myself, “What do you think I’ve been doing?” In a similar way, we now find lawyers saying, That first generation of Founders and lawyers rarely said anything about Natural Law. All you have shown us are the writings of some literate men, tracing their judgments back to the axioms of reason underlying their arguments, axioms—and rights—that would be there even if there were no Constitution. When are you going to show us how they did Natural Law?

And we could say, now properly aloud, that we just have.