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The “Laws of Reason” and the Surprise of the Natural Law
Published online by Cambridge University Press: 13 January 2009
Extract
The city of Cincinnati, we know, can be an engaging place, but federal judge Arthur Spiegel also found, in the mid-'90s, that it could be quite a vexing place. The city council of Cincinnati had passed what was called the Human Rights Ordinance of 1992, which barred virtually all species of discrimination—including discrimination on the basis of “Appalachian origin.” But the bill also encompassed a bar on discrimination based on “sexual orientation.” This kind of bill, in other places, had been turned into a club to be used against evangelical Christians who might refuse, on moral grounds, to rent space in their homes to gay or lesbian couples. And so a movement arose in Cincinnati, modeled on a similar movement in Colorado, to override the ordinance passed by the council: this would not be a referendum merely to repeal the law, but a move to amend the charter of the municipal government and remove, from the hands of the local legislature, the authority to pass bills of this kind. In effect, this was an attempt to override an ordinary statute by changing the constitution of the local government. The amendment did not seek to make homosexual acts the grounds for criminal prosecutions; it sought, rather, to bar any attempt to make gay and lesbian orientation the ground for special advantages, quotas, or preferential “minority status” in the law. The framers of the amendment objected to the tendency to treat gays and lesbians on the same plane as groups that have suffered discrimination based on race, religion, or gender. The proposal, known as Issue 3, drew wide support and passed in a referendum in 1993. It was, of course, challenged in the courts, which is why it found its way into the hands of Judge Spiegel.
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References
1 The policy engaged here, framed as a constitutional amendment, would come to describe a rather strange course: the amendment in Colorado was struck down in the Supreme Court in a rather dazed opinion, while the same policy, in Cincinnati, was upheld by the court of appeals. See Romer v. Evans, 517 U.S. 620 (1996).Google Scholar
2 At the trial in Cincinnati, I unfolded the arguments that I restate here in the paragraphs to follow. In the transcript of the trial, they can be found in various places, but particularly at 652–60. By the time Judge Spiegel came to write his opinion, he had backed away from his remarkable argument, and there was only a muted reflection of it left in the record. See Equality Foundation of Greater Cincinnati v. City of Cincinnati, 838 F. Supp. 1235, 1238 (S.D. Ohio 1993).Google Scholar
3 Marbury v. Madison, 5 U.S. 137 (1803).Google Scholar
4 Madison, James, quoted in Farrand, Max, ed., The Records of the Federal Convention of 1787, rev. ed. (New Haven, CT: Yale University Press, 1966), 2:92.Google Scholar
5 See Locke, John, An Essay Concerning the True Original, Extent, and End of Civil Government, sec. 157.Google Scholar
6 Federalist No. 78 (Hamilton), in The Federalist Papers (New York: Random House, n.d.), 507.Google Scholar
7 Federalist No. 81 (Hamilton), in The Federalist Papers, 526.Google Scholar
8 Gibbons v. Ogden, 22 U.S. 1, 221 (1824).Google Scholar
9 Federalist No. 31 (Hamilton), in The Federalist Papers, 188.Google Scholar
10 Blackstone, William, Commentaries on the Laws of England (Oxford: Clarendon Press, 1765), 4:67.Google Scholar I am using here the edition published by the University of Chicago Press in 1979, with a copy of the original plates and preserving the same pagination.
11 See my “The Right to Die—Again,” in Uhlmann, Michael M., ed., Last Rights: Assisted Suicide and Euthanasia Debated (Grand Rapids, MI: Eerdmans, 1998), 95–110.Google Scholar
12 Kant, Immanuel, Groundwork of the Metaphysics of Morals [1785], trans. Paton, H. J. (New York: Harper and Row, 1948), 120 (Academy pp. 452–53).Google Scholar
13 These two components can be brought together in several different sentences that say essentially the same thing, and so one of Kant's may serve just as well: “Act on that maxim that is fit to be installed as a universal law.” The sentence, cast as a form of imperative, has as its subject the implied “you” or “anyone.” The subject of the sentence, then, is a person, or rational agent, operating in the domain of freedom. But from that subject we cannot extract, as a necessary implication, a person who is seeking to accord the maxim behind his act with a law of reason, a law fit to be installed as a universal rule. To put it another way, the predicate here cannot be drawn as an implication of the subject in the way that the predicate can in the statement “a triangle has three sides.” And so, Kant's statement conjoining the two points does not constitute an “analytic” statement. It is, then, a “synthetic” statement, which brings together things not implied in each other. Therefore, the statement is at once synthetic and a priori, for it is a statement about the way in which the world is arranged, and it is rooted in propositions that are true of necessity.
14 Reid, Thomas, Essays on the Active Powers of the Human Mind (1788; reprint, Cambridge, MA: MIT Press, 1969), 361.Google Scholar And for a fuller exposition of the understanding sketched out in these pages, see my own book, First Things (Princeton, NJ: Princeton University Press, 1986), chaps. 4, 5, 8.Google Scholar
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17 In this vein, see Story's opinion in the case of United States v. The La Jeune Eugenie, 2 Mason 409 (Mass. 1822).Google Scholar
18 This was, of course, the very shape of Lincoln's policy as he sought to reject slavery in principle, while making an accommodation with it as an evil quite hard to dislodge without a civil war. Part of his policy was focused on the fugitive slave clause of the Constitution and on an agreement that he thought was “nominated in the bond” of the Constitution. In this arrangement, the free states agreed to return runaway slaves, while on the other hand, the foreign trade in slaves would be ended, and the expansion of slavery barred from the new territories of the United States. The supply of slaves would be blocked, as much as practicable, from the outside, and the expansion of slavery would be blocked within the country as well. These features marked the compromise, or the settlement, contained within the original Constitution. Lincoln thought that these features formed a design with a clear import to be read by succeeding generations: namely, that the Founders looked upon slavery as something wrong in principle—something to be restrained and discouraged, not something to be celebrated and promoted. Lincoln returned to the logic of that original settlement in his first inaugural address. See Basler, Roy P., ed., The Collected Works of Abraham Lincoln (New Brunswick, NJ: Rutgers University Press, 1953), 4:263–64, 268–69.Google Scholar
19 Dred Scott v. Sandford, 60 U.S. 393 (1857).Google Scholar
20 Barron v. Baltimore, 32 U.S. 243 (1833).Google Scholar
21 Abraham Lincoln, in the fifth debate with Douglas, at Galesburg, IL, October 7, 1858, in Basler, , ed., Collected Works of Abraham Lincoln, 3:231.Google Scholar
22 Each of these quotations can be found at ibid.
23 U.S. Constitution, art. 4, sec. 2.
24 In art. 6, sec. 2.
25 “The intended government would be precisely the same,” he wrote, “if these clauses were entirely obliterated.… They are only declaratory of a truth which would have resulted by necessary and unavoidable implication from the very act of constituting a federal government, and vesting it with certain specified powers.” See Federalist No. 31 (Hamilton), in The Federalist Papers, 198–99.Google Scholar
26 Chisholm v. Georgia, 2 Dallas 419 (1793).Google Scholar
27 The Eleventh Amendment provides that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or by Citizens or Subjects of any Foreign State.”
28 See, as a notable example, United States v. Lopez, 514 U.S. 549 (1995).Google Scholar
29 The cases were announced to the public in June 1999, to the deep disbelief of liberals and the mild bewilderment of conservatives: Alden v. Maine, 527 U.S. 706 (1999)Google Scholar, affirming 715 A.2d 172; College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 527 U.S. 666 (1999)Google Scholar, affirming 131 F.3d 353; Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 527 U.S. 627 (1999)Google Scholar, reversing and remanding 148 F.3d 1343.
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31 Ibid., at 458, italics mine.
32 Wilson, James, “Of the Law of Nature,” in Andrews, James DeWitt, ed., The Works of James Wilson (Chicago: Callaghan and Co., 1896), 1:96.Google Scholar
33 Chisholm, 2 Dallas at 456.Google Scholar
34 Ibid., at 472.
35 Ibid.
36 Ibid.
37 Ibid., at 473.
38 My friend Daniel Robinson offered me this further word of caution in a piece of personal correspondence: “Kripke's Naming and Necessity made out a strong and famous case for proper names being rigid designators in ways that descriptions are not. They are ‘rigid’ in that they are unaffected by radical alterations in the context of their use. Thus, what is picked out by ‘Napoleon’ is rigid in a way that descriptions of the sort, ‘was born in Corsica’ is not. The argument underlying this requires a logical status for ‘Philadelphia’ radically different from the status of ‘all now living within the following lines of longitude and latitude.’”
In the case of political entities, these kinds of confusions may be deepened. Robinson put it with his usual succinctness, and comic genius:
Suppose we advance the proposition that a and b are identities, where a = “Delaware” and b = “everyone now alive and living in the territorial space designated as “Delaware.” … Just in case those comprising the set b pick up one night and en masse relocate in the territorial space previously designated as “Paris”—whose occupants, for some reason, now think it best to pick up and relocate in Belgium—then p = a where p once was the place-designator “Paris.” Surely this doesn't work.
39 Chisholm, 2 Dallas at 478.Google Scholar
40 Ibid., at 477.
41 In the Federalist No. 39, Madison had taken care to explain the distinctions engaged here:
The difference between a federal and national government, as it relates to the operation of the government, is supposed to consist in this, that in the former the powers operate on the political bodies composing the Confederacy, in their political capacities; in the latter, on the individual citizens composing the nation, in their individual capacities. … [This] operation of the government on the people, in their individual capacities, in its ordinary and most essential proceedings, may, on the whole, designate it, in this relation, a national government.
Federalist No. 39 (Madison), in The Federalist Papers, 248.Google Scholar
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43 See, most notably, his dissenting opinion in Alden, 527 U.S. at 760.Google Scholar I surmise that it is Souter's accounts reviewing the winding jurisprudence of the Eleventh Amendment that inspired a remarkably tart rejoinder from Scalia: in College Savings Bank he complained of “the now-fashionable revisionist accounts of the Eleventh Amendment set forth in other opinions in a degree of repetitive detail that has despoiled our northern woods.” College Savings Bank, 527 U.S. at 688.Google Scholar
44 Hans v. Louisiana, 134 U.S. 1, 38–39 (1890).Google Scholar
45 But even this was a stretch. Jurists like Felix Frankfurter held for many years to the narrowest reading of the Fourteenth Amendment, expressed by Lyman Trumbull. On this reading, the Civil Rights Act of 1866 was directed against those “who were not punishable by state law precisely because they acted in obedience to unconstitutional State law and by State law justified their action.” Trumbull, quoted by Frankfurter in Screws v. United States, 314 U.S. 160, 182 (1946).Google Scholar
46 Dalehite v. United States, 346 U.S. 15, 57 (1953).Google Scholar
47 See Scheuer v. Rhodes, 416 U.S. 232, 237, 243 (1974).Google Scholar
48 Ex parte Young, 209 U.S. 123 (1908).Google Scholar
49 The case also raised these other questions with a constitutional edge: Did the state attach such penalties to a challenge in the courts that they virtually removed the equal protection of the laws and the right to seek access to the courts? And could a stockholder get an injunction to enjoin an officer of the state from enforcing such a ruinous policy?
50 Ex parte Young, 209 U.S. at 159–60Google Scholar, quoted by Burger, in Scheuer, 416 U.S. at 237.Google Scholar
51 Blackstone had remarked, in Book I of his Commentaries, that “the law, which restrains a man from doing mischief to his fellow citizens, though it diminishes the natural, increases the civil liberty of mankind[.]” To that observation, Wilson responded with a simple question: “Is it part of natural liberty,” he asked, “to do mischief to anyone?” Wilson, James, “Of the Natural Rights of Individuals,” in The Works of James Wilson, ed. McCloskey, Robert Green (Cambridge, MA: Harvard University Press, 1967), 2:587.Google Scholar
52 In a counterpoint to this argument, Chief Justice Marshall had held that it was no violation of the Eleventh Amendment for a federal court to inquire into the merits of a lawsuit in the first place, in judging whether there is a ground to sustain the action. See Cohens v. Virginia, 6 Wheaton 264, 410 (1821).Google Scholar
53 Osborn v. President and Directors of the Bank of the United States, 22 U.S. 738 (1824).Google Scholar
54 Ibid., at 847–48.
55 Ibid., at 854.
56 Ibid., at 842.
57 College Savings Bank, 148 F.3d at 1355.Google Scholar
58 See, most notably, the decision of the Court in Seminole Tribe v. Florida, 517 U.S. 44 (1996).Google Scholar
59 Justice Breyer, as a “realist,” thought that the Constitution required a certain “flexibility” in dealing with a modern economy with computers, and that flexibility could be served by allowing private citizens to police the borders of regulation with private suits, directed against any players, including the state, when it becomes a player. But “flexibility” could also be served by removing that vexing power of Congress to assent to the executive orders of the President. As Scalia remarked, “Congressional flexibility is desirable … but only within the bounds of federal power established by the Constitution.”
60 Alden, 527 U.S. at 756.Google Scholar
61 Even apart from this, the argument would not strictly be consistent with the understanding of the rule of law and “government by consent.” For even when a person is part of the minority in this country, he is understood to have the right to withdraw his consent to the policies of the government by removing himself from the territory. But well short of this extreme, he would have the right, simply as one person, to come into a court of law and challenge the ground of law on which the government claims to commit him to its policies. We recall that one establishment of kosher butchers managed to bring down the National Recovery Act in the days of the New Deal; see Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935).Google Scholar We would hardly think of ourselves in the same country or regime if we said that individuals can seek to vindicate the wrongs they are suffering, but only if they can act politically as part of a majority.
62 City ofBoerne v. Flores, 521 U.S. 507 (1997).Google Scholar The Religious Freedom Restoration Act had sought to cast an added layer of protection around conduct that was bound up with religious practice. The act would have required local laws to cite a “compelling interest” before they could interfere with activities that grew out of religious rituals.
63 Roe v. Wade, 410 U.S. 113 (1973).Google Scholar
64 See Davis v. Monroe County Board of Education, 526 U.S. 629 (1999)Google Scholar, reversing and remanding 107 F.3d 1390.
65 The case for this proposition was assembled in a compelling way by the late Grodzins, Morton in his The American System: A New View of Government in the United States, ed. Elazar, Daniel J. (Chicago: Rand McNally, 1966).Google Scholar
66 Even jurists as advanced in their careers as Richard Posner or David Souter have confounded natural law with empirical theories about the incorrigible tendencies of human beings, or with the ways of life that are thought acceptable by most people. See Posner, in mid-career, in The Problems of Jurisprudence (Cambridge, MA: Harvard University Press, 1990)Google Scholar; and Souter, in his early years, in “Holmes' Legal Positivism and the Criticism from a Current Position of Natural Law” (senior honors thesis, Harvard University [1961]).
67 New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921).Google Scholar