Hadley P. Arkes

Interview with Hadley P. Arkes, Part III



Arkes: After the Born Alive Infant Protection Act had passed in March of 2002, I got an an email from Karl Rove saying, “That was such a simple and elegant bill. Do you have anything else like that?” I said, “Are you kidding, of course we’ve got the next couple steps!”

What would some of those steps be, Hadley?

Oh, they would probably be the steps that I mentioned yesterday. I just wanted even that executive order. The bill on partial-birth abortion was being enjoined in the federal courts, so that was a bill that was barring the surgery. Oh, that’s how. We said, wait a minute, American taxpayers should not be compelled to be accomplices in a procedure that seventy or eighty percent of the public regard as abhorrent! So, let’s simply say that we’ll remove federal funds from any hospital or clinic that houses this procedure.

Well, this is the way that the federal government has been extended over the last 40 to 50 years in accord with a liberal agenda. We offer grants from the federal government—we don’t know how the federal government reaches any of the stuff—but we’ll give you a grant for birth counseling! Birth counseling? federal government doing birth counseling? in the central cities? but building housing? We do it by extending grants, and if you accept the grant, the federal rules come along. If you don’t accept the grant, well that’s fine because it’s no law. You don’t have to justify it.

So, we’d say, “Okay let’s do this. Almost have any of these facilities will be dependent on federal funds and I’d have the president pose the question, which would get set of crippling tensions among the Democrats, “Do the formulas of the Civil Rights Act apply to these hospitals?” On the Civil Rights Restoration Act, the youngster comes and gets a loan from the federal government, takes it to his school, and the whole place becomes a recipient of federal funds. Milton Friedman said, “It’s like saying somebody walks into A&P with food stamps, the A&P becomes a recipient of federal funds.” Okay but that’s striking. So, all the federal rules apply! So, I would have had Mr. Bush put the question to the Judiciary Committee: tell me, what is a recipient of federal funds? If somebody walks into a hospital or clinic and he happens to be covered by Medicare, if he’s getting Social Security, if he’s getting a refund from the IRS, is the whole place now a recipient of federal funds? And do we have now grounds for removing federal funds from the whole establishment?

All that Mr. Bush had to do was to raise that question. No executive order; just raise it! And you would have set of crippling tensions among the Democrats because they knew if they’d let us get through with this, we could legislate against abortion all the way down the line. They had to resist, but if they resisted they’d have to dismantle the whole formula by which the reach of the federal government had been extended over 40 or 50 years. They could do that, but if they try to resist us they’d have to resist on the worst terrain possible for them—defending their worst case that elicited the opposition of seventy to eighty percent of the public.

So, I told Karl, “This is a win/win situation! Do you want to dismantle the whole scheme? We’ll help them! You know, this is playing the political game. You just set off these crippling tensions in the opposition. If they had us in this position they’d have been squeezing hard! Our guys don’t play that game.”

Another example would be sex-selective abortions.

Yeah, well, we’re doing that right now. It’s interesting though, go back to the bushes for moment. Robbie George has a line about how the problem with the first George Bush was, for the pro-lifers, that he was all action and no talk. We needed a talk.

That memorable day, you remember it, in 1989. The Webster case, when it looked as though the court was taking the first steps to return the issue of abortion the political arena—maybe you could protect the child even before the point of viability—reporters rushed to President Bush, who was on the golf course, and he was so moved by the moment that he was not quite moved to remove the wooden tee between his teeth. And he said, “We’ll have a statement for you later on that.” See, that was the moment in which you needed the talk of a president who frames the issue to avert panic among those pro-life Republicans who didn’t know where to go. You tell your constituents, “We’re going to start a conversation on this, and we’re going to start with something very modest. You people in New Jersey will not be inflamed that by the fact that we’re going to protect the child born alive. Don’t anybody worry, we’re going to do this all very gradually, in a conversation.”

So, I thought that this issue would be the easiest for George W. Bush, that there were so many republicans in New Jersey and Connecticut who would have liked to vote republican had it not been for this vexing issue of abortion getting in the way. And I thought that Bush could go into Connecticut and New Jersey and say “Look, I know we disagree on many things, but can’t we at least agree on this minimal thing?” But he never used it at all. In fact, he never even endorsed this minimal bill. The endorsement came from the executive office of the president in the executive office building. You wonder why, because he did endorse the bill on partial-birth abortion. My own surmise was that the bill out partial birth abortion was already on the scene; it was there; it had been there for a while; for several years, it had been talked about, so it was already much in play. But to talk about something new betrayed a willingness to talk about these things. And in the circles in which Mr. Bush moved, it was considered kind of tawdry to talk about things like this.

I thought that this just was one of the problems for the pro-life movement. The other side knows that the Republicans get very, a friend of mine says, “goosey,” talking about these things that they’re nervous talking about. They don’t want to talk about them. The other side knows they don’t want to talk about them and that virtually guarantees that the media will come at them making them talk about them and moving them into all kinds of unforced errors. And that, as I was arguing yesterday, is one of the sources of our problems. The issues of the life and marriage are net winners for the conservative side when they’re raised.

Anything that gets the country talking about abortion, thinking about it, arguing about it, reasoning about it, is really something to our benefit because when people have to address the question, it means people can’t ignore it; they can’t sweep it under the rug.

That’s absolutely right.

That’s the victory for the pro-abortion side: when it’s so normalized that it doesn’t even get talked about. It just gets pushed into a corner so that we don’t have to confront the issue head-on; we don’t have to look at what it is exactly that we’re doing when we end the life of that being.

That’s right. It’s just one of those things that is hardly worth talking about anymore. We just all accept the rightness of it. At least, nothing is said to call it all into question. Right.

Let me transition now just for a few minutes to talk a little bit about natural law and the principles of American government because you’ve certainly been one of the premier defenders <Arkes reacts with surprise> of a natural law interpretation of American political principles and yet, in general there’s not a lot of discussion of natural law in American society today. So, talk a little bit about the importance of the role of natural law in American political principles.

Yeah, somebody said there’s not much talk about natural law in American law of these days and then Robinson remarked “Yeah, there has been much discussion of the alphabet either, but it seems to be running through everything we do.” I think Posner once remarked that there are these misunderstandings of natural law, that infanticide and incest seem to be intractable parts of the human experience; therefore, they must be planted in something deep in human nature; therefore, they must be in accord with natural law. And so, natural law gives us, “a generalization about the checkered record of our species.” You know Kant warned about this years ago, about how you don’t make your way to these principles by simply giving generalizations on what people have done. The natural law tradition has always made a distinction between what is higher and lower in our nature; remember Lincoln invoking those better angels of our nature. Our capacity to reflect about the rightness or wrongness of our ends is higher than our brute animal strength. There’s recognition of this.

But also, people attach themselves to thinking there is a difference between natural law, with the accident duties, and natural rights as presented by Thomas Hobbes. But obviously, Hobbes detached rights entirely from any moral dimensions to the problem. But those of us who work in this field talk about these rights in accord with nature. Human beings just have a sense that there are certain objective truths planted in nature. And to take it back to its rudiments for the American regime, actually it does follow Aristotle. He believed that we work our way to the things that are distinctively human by separating human things from things that are subhuman or superhuman. So, Aristotle says that anyone who’s outside of a polis, anyone who doesn’t need the restraints of the law, must either be a beast or a God; he’s above it he doesn’t need the restraints. An animal? He’s just insensitive to the moral teachings of the law.

So, the founders all said that no man is by nature the ruler of other men the way that God is by nature the ruler of men. Monarchy would be the only fitting form of government for God in relation to human beings, but not for one man among others. As James Wilson said, “Supreme authority would be justified in case of He who is supreme but not among these sublunary creatures.” But the other thought was, “No man is by nature the ruler of other men the way God is by nature the ruler of men, or the way men are by nature rulers of dogs and horses. If we come to a state of affairs in which some men are ruling over others, that can’t arise from nature; it must arise from convention or consent. The only rightful government is that which draws its just powers from the consent of the governed.”

And Jefferson said, “Anyone who rejects that must assume that the masses of mankind were born with saddles on their backs and the privileged few were born with spurs on ready to ride them.” Then four score and two years later, Douglass says in the debate with Lincoln, “If it comes down to a matter between a white man and a black man I am decisively on the side of the white man. But if it ever came down to dispute between the black man and a crocodile, I’m for the black man.” And Lincoln, who didn’t have the advantage of an analogies test, said, “What Douglas is telling you is that the black man is to the white man the way the crocodile is the black man. The only way he can remove from black people the rights that would flow to human beings by nature, including the right to be ruled only with their consent, the only way he could make the case for removing from black people those rights would be by assimilating black people to the things that are subhuman.”

Now, those are the themes that run through Lincoln’s rhetoric in his argument with Douglas, but for our time we point out to people that Lincoln said, “All honor to Jefferson to articulate an abstract truth applicable to all men at all times.” Barack Obama invokes the Declaration of Independence, “All men are created equal,” but doesn’t believe it’s the truth. What he said in his inauguration was a matter of historical experience, which means that ten years from now, or a hundred years from now, that well may not be true. And we’ve been put the question with Lincoln; we thought these rights were grounded in the nature that separates human beings from other animals and from God; we think that a hundred years from now that nature will remain the same; these rights will be the same in all places in the world—all “cultures,” so called—in which that nature remains the same. Even in this age of animal liberation, we still don’t sign labor contracts with horses or cows; we don’t think it makes sense to seek the informed consent of our household pets before you authorize surgery on them; but we continue to think that those beings who can give and understand of reasons over matters of right and wrong deserve to be ruled with reasons in a regime that elicits their consent. And politicians have an incentive to give people reasons. So now we ask, “A hundred years from now, you think those parts of nature will be changed. Do you think we will be signing labor contracts with dogs or horses?” And so on.

Well if you think that will remain the same then you give the answer to Joe Ellis from Mount Holy Oak, who said, “How could you believe this thing written at the end of the 18th century could articulate a truth that could plunk down here at the end of the 20th century and the beginning of the 21st? Don’t we know that all knowledge is historically based?” Except for the doctrine of historical relativism, right? <laughter> That will hold true that will hold true across the historical epics!”

The self-referential argument is always so powerful.

Yes, so you know, the wonder of it all! The founders talked about things you grasp per se nota, as axioms, for example that two contradictory propositions both cannot be true. You’ve got to grasp that before you grasp anything else. If I say, “Two contradictory propositions both cannot be true,” and I say, “and Aquinas said it!” do I add anything to this? Now I say, “This Pythagorean theorem—but Pythagoras said it!” You know, it doesn’t depend on Pythagoras’ opinion or his credential. Now I say, “Two contradictory propositions both cannot be true—and it’s in the Second Amendment!” I haven’t added anything to it.

Now let’s start saying things like, you know, Alexander Hamilton would say, “We work on this rule of construction,” this was probably around 78, “any later statute supersedes an earlier one.” That’s not the rule of construction we work with in the Constitution. The Constitution, coming earlier, must be able to override the statute coming later or else it loses its function as a control and a legislative power. And Hamilton says, “How do we know this? It’s not in the positive law of the Constitution. It’s in the reason and the nature of the thing. Take one of the first principles of moral judgment that James Wilson mentions: “We cast moral judgments on people only in the domain of freedom, when they actually have some control over their own acts so that we don’t hold people blameworthy or responsible for acts they were powerless to control.” If Smith wasn’t born at the time the crime was committed we take that to be powerful evidence for his innocence. If Smith was thrown out the window and on the way down lands on Jones we don’t hold smith responsible for an assault! If Smith wasn’t in control of himself, for example if somebody else has hypnotized him, he’s not culpable.

Well that proposition is nowhere in the Constitution! Nor is, “Presumed innocent until proven guilty.” How do we know it? Well, they are axioms. And consequently, the founders would just trace their judgments back these things that had to be in place before you could write this document. We have judges asking, “Well, can the Constitution just secure some of these rights? Or some of these axioms?” That’s rather like the question, “Do I have to use syntax while I order coffee?” It’s implicit in everything you do; those principles are there, and of course if they’re principles of reason, like the law of contradiction, we don’t hold people blameworthy for acts they were powerless to effect. Of course, they’re there! And you recognize them. Now, my friend Scalia would say, “They’re there because they’re part of the common law is tradition!” And then the old question then is, “Are the principles true because many of our people have believed them for a long time? Or have we made them traditional because they are true?” See, there’s no way of getting around that main question.

Yeah. Well thanks for tuning in today to hear Hadley Arkes, the great pro-life and natural law scholar who has done so much to put the natural law at the center of serious intellectual discussion about the principles of the American regime and who has especially applied it to these fundamental issues about the right to life—which is certainly one of the most fundamental issues of American government. And so, I hope this serves as a stimulus to go back and look at that natural law tradition which is such an important framework for our life.