Ah! We’re having it, we’re having it at last—the jabbing, jouncing jugularity of a good old (maybe not actually good, but you have to start somewhere) national scrum over what it means to destroy life in the womb. If it means anything at all. To various participants in the scrum, it means at most an irritating interruption in daily affairs.
The proximate cause of it all: that U.S. Supreme Court decision last year (Dobbs v. Jackson Women’s Health Organization) extinguishing Roe v. Wade as a burden on our moral reckonings as to unborn human life. We’re jumping up and down, glaring, taunting. We’re on the verge of settling absolutely nothing, but the adrenalin has kicked in, and Americans are finding things to say that in a free society need saying. It is how still-free societies function, whether the societies in question like it or not.
The necessity, under these circumstances, of listening intently to Hadley Arkes (professor emeritus at Amherst College) seems to me indisputable. He squeezes the pseudo-jurisprudence out of a matter we had almost convinced ourselves was the sole domain of the lawyers and judges—the nolens volens, nolle prosequi set, with their long grave looks and thumbs worn smooth from caressing sheaves of paper. What we have got here is a moral issue.
That’s “Moral”: capital “M.” Heard of it lately? “Right,” “wrong,” “good,” “bad”—that sort of stuff, badly off-key in a society insistent on deciding most matters on a personal-preference basis. It is no wonder we brawl at the funeral rites for Roe v. Wade and its successor judicial pronouncements, on whose thousands of pages of ponderosity the concept of morality never appeared; never having been put there in the first place; never having been acknowledged as relevant to the question of whether a pregnant woman bears life in her womb, thus whether that life enjoys constitutional protection.
Abortion is supremely a moral issue—to put it another way, a moral issue disclosed to us by what the incisive Prof. Arkes, presently head of the James Wilson Institute on Natural Rights and the American Founding, refers to as “that commonsense understanding of ordinary people, in which the Natural Law finds its ground.” It’s, you might say, a people thing, requiring particular kinds of behavior.
The Natural Law. Hmmm. There is a vaguely ecological odor to the enterprise: black elderberry gummies? Faded pages of Thoreau? Yet the Natural Law is the cosmic order itself, formed from time out of mind. Its moral component is unalterable. That which is just and right and truthful never changes; nor that which reeks of cruelty and unfairness. So, anyway, we used to own prior to the slow but insistent embrace, beginning in the 17th century, of the notion that man, as distinguished from God, is the measure of all things— “all” taking on wider and wider and wider implications as the joys of liberation took hold of many minds.
This takes some explaining, which makes Hadley Arkes’s deep dives into the topic over many years so fruitful. His first book in eight years is Mere Natural Law: Originalism and the Anchoring Truths of the Constitution (Regnery, 307 pp., $32.99).
“Mere” tips the hat to the great C. S. Lewis, whose World War II broadcast talks, titled Mere [i.e., basic, down-to-the-studs] Christianity, won for him his initial celebrity. For my part, I wish Prof. Arkes—than whom there is no more acute proponent of the Natural Law—had sidled up closer, or more explicitly so, to Lewis and his fellow keepers of the Natural Law in its immense, overwhelming religious form. I will have more to say on this point as we move forward.
I want first to suggest that readers of this review—assuming no pre-existing disagreements with my credibility—procure a copy of Mere Natural Law and, as the Anglican prayer book Collect would have it, “read, mark, learn, and inwardly digest.” Set aside some time. This isn’t Aquinas refashioned for James Patterson readers. A certain amount of re-reading is in prospect. Nor is the book as compact as it might have been. Which of course means it’s thorough. You don’t stop Hadley Arkes when he’s 1) on a roll, 2) expounding on his favorite subject in the world. A book, nevertheless, showing at the end the inadequacy of expectations that we’ll all work this abortion thing out at the state capital or the governor’s office seems to me to be in want of some compression.
The crucial chapter of Mere Natural Law is the very last one—“After the Overruling of Roe: The Natural Law Moment.” Arkes shows where he has brought us. It is a daunting location: from which a realization breaks over us. To wit, the moral grounds for allowing abortion under any circumstances, or just some—given that the unborn child is human from the start, according to the unrefuted biology and so forth—do not admit of judicial or political compromise. The child is a child is a child. A person. And a person, under the Fourteenth Amendment to the Constitution, deserves governmental protection.
We are not as a society going to get this thing right, right away. Witness the voters of Ohio, who, as I am writing, have turned down by 14 points a constitutional proposal that would have toughened requirements for amending the state constitution—and thus possibly inserting into that charter document this fall the guaranteed right to an abortion. This was post-Roe democracy in action. Except that, as Arkes labors to explain in Mere Natural Law, the Natural Law doesn’t grant this kind of latitude.
Yeah, sure, the overthrow of Roe and the commencement of the intellectual joustings we see all around us look—theoretically; very, very theoretically— toward just such circumstances. You win some along the way; you stand to lose just as many, if not more. The Wall Street Journal, friendly as a rule to the pro-life cause, advised the GOP—which lost big in Ohio—to find “an abortion message that most voters can accept.” Arkes has no traffic with such a suggestion.
Nevertheless, from a Natural Law standpoint, he can’t be astounded at such developments. Arkes rightly considers the jurisprudence of Roe v. Wade to have been corrupt all along—a mélange of made-up notions permitting court majorities to say something, anything, in line with the pro-choice trends of the day. From which the matter could be lateraled to Congress, the executive branch, the purely political branches of government, bound far more by polls and fund-raising duties than by the abstraction called “Natural Law.”
Arkes wishes strongly that the court majority in Dobbs (led by Justice Sam Alito) had relied on Natural Law principles, eschewing “the insistent theme of conservative jurisprudence” (influenced by the political view of the thing, e.g., “the matter of abortion belongs entirely in the states”—e.g., Ohio!) “because there is no consensus and no clear truths that bear on the question of fetal life.” What about the protection of human life? Wouldn’t, shouldn’t that have made for an open-and-shut case? A ringing rejection of the anti-human-life Roe regime? Dobbs, to be sure, was about the best the politics of the matter would have allowed. Try to imagine, under present circumstances, a total judicial overthrow of “rights” regarded by many as more central to life than free speech.
Politics, politics: Are we not loving it in the year of grace 2023? “The indelicate truth that could not speak its name,” writes Arkes, “was that in the conservative jurisprudence at work in [Dobbs], the child in the womb did not supply the ground of the constitutional argument or the object of official concern.”
Oh, what a fall there was—a moral tumble requiring centuries to execute, filled with human speculations and assertions as to new, supposedly refreshing ways of living and looking at life. Whatever you mean by “life.” Can the old ways be put back in place to any meaningful extent, so that the unborn may again receive official protection (irregular as that benefit may have proved over long centuries prior to our own time)?
Arkes shows himself capable of smiles as well as the grimaces that come naturally to wrestlers with the culture’s moral infractions. Dobbs, he writes—despite its omission of Natural Law understandings from the final result—“may produce results wondrous beyond anything that any of us has expected.” No lover of Stephen A. Douglas and his non-Natural Law-inspired grapplings with political solutions to the slavery problem, Arkes holds up, hopefully, the Emancipation Proclamation as a reminder of how the human capacity for change can advance the cause of the good and the right and the true. I think it should be taken into account that Mr. Lincoln’s Natural Law war, in which the Emancipation Proclamation figured so heavily, cost the lives of 750,000 Americans and produced the economic ruin, for nearly a century, of an entire American region and its inhabitants, Black as well as White. Will Dobbs, in the same way, “as excruciatingly circumscribed as it is . . . be animated by an affirmation of the sacred value of life”? Arkes observes that Mr. Justice Alito, the author of the majority opinion in Dobbs, “supplied . . . the rudiments of a principled argument on abortion, and sending them aloft in the world, they may awaken again the powers to think anew, even in the blue states.”
May it prove so. My own hope would be of a complementary sort: to wit, that the fundamental basis of the Natural Law—the Law of God—might regain a measure, at the very least, of its one-time centrality in human affairs. Talk about what’s supposed to be inarguable! Who put the world together in the first place? Chronologically, the tablets that God put into Moses’ hands— beginning, “I am the Lord thy God . . . Thou shalt have no other gods before me”—easily predate the Republic of Plato and the Ethics of Aristotle and trump the ideas of Rousseau and Hobbes.
The Natural Law and the Law of God—lay aside the ceremonial and doctrinal aspects of the latter—can be called identical: the same claims on the individual; the same calls to virtue and dignity and honor; the calls to respect life, to respect the human creations of the Lord in all their dignity and wonder. The Christian church—long instrumental in the affairs of the American people—took up Natural Law in its own fashion, affirming its understanding of right and, equally, of wrong. Paul, one of history’s greatest figures as viewed from any perspective, spoke simply to the Christians of Rome concerning the work of the law written in the Gentiles’ hearts. St. Augustine saw oughtness as the norm of free moral activity, inscribed in the heart of man so far as the latter participated in the divine law.
So where’s this going? Where are the guys in black robes, with their gavels? I am not sure of their utter centrality to the problem at hand. That’s where this is going. Here Prof. Arkes lets me down just a little. Let me explain.
Arkes, who joined the Roman Catholic Church professing admiration for its truth-telling capacity (and who is ten times my intellectual superior; maybe eleven or twelve), might have given a little more space to what I see as the central problem of our times: the beggarly nature of our moral understanding. May I add, the very insufficiency that gives pro-choicers, on the bench and off it, the go-ahead. Aw, what’s the big deal about unborn life?, so very many ask. They get away with asking it because the common sense that informs Natural Law understanding operates best when the Law of God looms as a dazzling light on their pathway. It’s not just, “Oh, I believe good things”; it’s, “Yea, Lord, give us this day our daily bread.” That’s what’s powerful, that’s what’s dispositive—little as contemporary theologians and way, way too many members of the laity relish the idea of abandoning social justice causes in order to put God metaphorically back on His throne. Which if they’d do, we’d get somewhere with the life-saving business. We may yet. I have hopes.
What we really need is a moral and spiritual overhaul—a point on which Hadley Arkes, I can confidently say without consulting him personally, is in ripe agreement with me: How might we undertake a reshuffle of these wornout arrangements?
I think we work from within and without the churches: Not all of whom, by any means, have followed the Bad Shepherd into irrelevance. I think we work for spiritual overhaul—rehabilitation of spirits gone weary, empty from contemplation of the present age’s sorrows. “[W]e are losing our soul, our sense of purpose as a society, our identity as a civilization,” writes the Wall Street Journal’s Gerard Baker. That sort of thing can sure enough take it out of you. Hadley Arkes brilliantly puts his finger and thumb on this point. Believe the wrong things, do the wrong things—that’s how it works out even in the context of all the black-robed gravity on display when powerful jurists gather.
The citizens of Surry County, Virginia, in 1785, declared that “True religion is most friendly to social and political Happiness—That a conscientious regard to the approbation of Almighty God lays the most effective restraint on the vicious passions of Mankind, affords the most powerful incentive to the faithful Discharge of every sacred Duty and is consequently the most solid Basis of private and public Virtue is . . . a Truth sanctioned by the reason and experiences of ages.”
Back to Roe. Back to Dobbs. The Natural Law surely is guide to the complexities of human life in all ages, all places. But if the soul of the Natural Law is belief in the God who “formed man of the dust of the ground, and breathed into his nostrils the breath of life,” I should think that makes the matter utterly decisive.
That way—the way of reanimated faith in the God whom Americans formerly, as a people, worshiped as holy—would seem to me the way of ending all quibbles and quarrels about the rights of unborn life—indeed, life of any kind—whatever jurists and state chairmen venture on one side of the case or the other. I have just the intimation that the time of turnaround could lie not far down the road, inasmuch as on all other supposed routes to virtue and truth and justice no comparable light shines, and darkness engorges.
William Murchison, a former syndicated columnist, is a senior editor of the Human Life Review. He will soon finish his book on moral restoration in our time.