The Moral Turn by Hadley Arkes
Justice Holmes gave voice to the modern legal project when he registered the hope that “every word of moral significance could be banished from the law altogether, and other words adopted which should convey legal ideas uncolored by anything outside the law.” In other words, an understanding of “law” made ever purer by being ever more detached from any moral content. Conservative lawyers and judges have had no special reverence for Holmes, but they have backed themselves into a comparable understanding as they have recoiled from what they see as the vice of liberal jurisprudence: a cavalier willingness to appeal beyond the text of the “positive law,” the law that is posited or enacted, either in statutes or in the body of the Constitution. The dreaded appeal would be to those principles of law so deep that they are not contained in the text of the Constitution (for example, that “we do not hold people blameworthy and responsible for acts they were powerless to affect”). In the hands of lawyers such as John Marshall, James Wilson, and Alexander Hamilton, these axioms of law would be there even if there were no Constitution. Which is to say: They are part of the “natural law,” the dreaded “N-word” among some conservative jurists.
Attorneys Jay Floyd and Robert C. Flowers argued heroically in defense of Texas laws restricting access to abortion. They, in fact, did a magnificent job, both legally and morally, in delivering a spirited and philosophically cogent argument in defense of the unborn life. Tragically, the bench at the highest court failed us all 44 years ago.
Hadley Arkes, a brilliant scholar and national treasure, recounts the events in the May 2017 issue of First Things. Non-subscribers are entitled to three free articles per month. I highly recommend using one of those to read this fine accounting of one of the most contentious events in the history of American governance.
And this revelation,
But then came, in the most striking contrast, the dissenting opinions in Roe and the companion case of Doe v. Bolton, written by Justices Byron White and William Rehnquist. Those opinions did not draw on that rich substantive case made by the lawyers for Texas. In fact, the opinions were written in such a way that they could readily invite the inference that the judges had ignored, or left unread, the evidence and the argument contained in the briefs.
I continue to find it remarkable to hear people say that public opinion may change on abortion because we know so much more about the baby in the womb than we did in 1973 when Roe was decided. But the brief for Texas showed how precise and deep our knowledge of the child in the womb already was…