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April
30, 2003, 7:45 a.m. |
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Natural Rights and the Right to Choose, by Hadley Arkes (Cambridge, 302 pp., $28)
very
once in a while there is a book that blazes across the sky so majestically,
so slowly, that it makes your heart stop. Anxious to talk about it with
friends, you find that very few other people ever saw it — it might
as well have been a stunning comet at 3 A.M., which no one else was awake
to see.
Darn it! I want to talk about it. I mean Hadley Arkes’s majestic Natural Rights and the Right to Choose. What a book!
Let me begin by pointing out that the last 60 pages of the book consists in the rarest sort of memoir, a memoir by a philosopher with the wit of a Henry James recounting his experiences testifying before the United States Congress over a long period of months on the Born-Alive Infants Act. Which, after much perturbation in the congressional womb, was itself finally permitted to be born alive, and to become law in the year 2001. Since Hadley Arkes was the chief visionary and protagonist and testifier on behalf of that law, he is here an invaluable witness to history — and important history it is, as significant in its way as the Lincoln-Douglas debates.
And, naturally enough, Arkes suffered during this period all the anguishings of an expectant father — comforter, cheerleader, coach, water bearer, explainer-on-call, but in the important things without any ability actually to produce the law himself. It is a delicious account, picking up many of the wonderful tics and idiosyncrasies of our august lawmakers struggling to ask questions they don’t always understand. This memoir of one long season in Congress is alone worth the price of the book.
Indeed, the problem with this book is that so many of the chapters are in themselves classics that one wants to reread, and keep near for restoking the fires of exact memory, from time to time. There are only eight chapters in all, including the short introduction (and the long memoir just mentioned above). None is a flop, or without singular merits, but some of them positively sing.
For instance, chapter three, “On the thing the Founders Knew — and How our Judges Came to Forget Them,” is a painstaking (and painful) account of how, by small steps of logic, taken no doubt with all the affability and aplomb that eminent judges are famous for, the ground on which Hamilton stood, or Jefferson, or Lincoln, is no longer available to us. It has been given away, down the generations traded for a mess of pottage.
I will also cherish chapter seven, “Finding Home Ground: The Axioms of the Constitution,” as a magnificent brief statement of the architectural principles that lifted up the most noble articulation and defense of rights ever achieved.
Chapter four on “the Modest First Step” that precipitated the current rapid evisceration of natural rights, and chapter six on “Judicial Usurpation” and “the Unraveling of Rights,” have somewhat more the character of narratives of recent events and of the arguments offered as rationalizations for them. But only somewhat more, for Arkes blends the extraordinary skills of a philosopher, constitutional scholar, and intellectual historian in every chapter. Every chapter also displays the occasional flash of a stand-up comedian, as when he cites Woody Allen apologizing to an audience for not being able to end on a positive note; [pause], Could he make it up with two negatives?
But let me go back to the beginning. After telling the story of Lincoln’s great disappointment that his generals just couldn’t seem to grasp the logic of the Union — puffing themselves out for defending Pennsylvania or Maryland, while forgetting that the essence of the war was that the Union includes every state — Arkes points out how
...in the most affable and serene way, many Americans, and especially, members of the political class, have come to talk themselves out of the premises of the American Founders and Lincoln. They have done it without the least awareness, and indeed they have done it while they have had the impression that they have been expanding their constitutional rights.
“Privacy” was one of their newly invented claims, and it expanded like a heated gas in the realm of sexual life, just as, ironically, it was being shrunken, crimped, and repressed by expanding lawsuits and thicker regulation in the realm of private corporations, private clubs, and private households.
While the elephant in the middle of this book is unavoidably and inevitably abortion, I find that it is best to read the book by keeping one’s eye on natural rights, for that is the true subject and the author’s true love. He would be glad, one feels, to avoid the question of abortion entirely if it did not trespass upon rights; indeed, “trespass upon” is too mild a verb. Asserting the right to choose abortion takes away, destroys, denies all the other natural rights, eviscerates the very concept of natural rights. Arkes puts this point-blank in “The Drift from Natural Rights” (chapter two):
For the purposes of this argument we could work on the assumption that the right to abortion is indeed thoroughly right, fully defensible. What we could discover, however, is that this “right,” the right that so many learned people consider now the anchoring right of their freedom—can be put into place only by denying, at the root, the logic of natural rights.
Arkes’s point is not merely that the right to choose abortion is a vacuous right, unsustainable as a right that can be vindicated against a majority, but that asserting that right deprives those who so assert of the ability to vindicate any of our natural rights. For they have abandoned the grounds on which the Founders held that there are any rights at all. Away from those grounds, there are no natural rights.
Arkes is not arguing some “strict construction of the Constitution,” as if one could escape his argument by taking a looser approach to that venerable text. Rather, he is stating as clearly as any man has or can the philosophical arguments set forth by the Founders on which they built up, in themselves and in the articulation of the people, their very conception of our rights, and how they are grounded in our human nature.
One does not have to have a doctorate in philosophy or be a doctor of laws to grasp the ground of your own rights as a human being, in a way that can vindicate them before the whole people. Lincoln could do it without any of those doctorates, and did it with homespun but crystal clarity.
Arkes presents masterful, brief lessons in the arguments Lincoln presented against Douglas on the question whether rights are based on nature or on majority opinion. The precise question was whether a man is as free to take his black slave across state lines as he is to take his hog; or whether a man is free to make a black man a slave. Douglas argued for the right to choose. Lincoln argued for the natural rights of the black man because he is a man. In Lincoln’s words, on the questions whether a negro can be carted by his owner across state lines as easy as a hog, and whether any man may lawfully enslave a negro, the answer “depends on whether a negro is not or is a man.”
Senator Douglas tried to evade such reasoning. He even went to such lengths as to suggest that the authors of the Declaration were manifestly speaking only of white men, and of the rights of Englishmen. Which gave Lincoln great room for gentle mockery. Not Frenchmen, then, and not Germans, either? Does Douglas intend that all true men are British? (That might be a riff in Gilbert and Sullivan, Harry Jaffa has noted, but hardly the view the Founders propounded to a candid world.)
Obviously, I am not doing justice to this feast of a book. If Arkes is right, more than half our aging Supreme Court is wrong, and so is the preponderance of our aging political class. Not just wrong, but wrong on the most fundamental treasure of the United States. Audacious, stunning, all this you might say of Arkes’s thesis, but never timid or boring.
Moreover, Arkes touches a vein deep in the reader’s soul that the reader cannot long deny, unless the reader enjoys less than a human nature. A capacity to envisage alternatives, to grasp their implications, and to choose among them, is the root in us of our right to self-government; and so also is the duty that, self-evidently, every creature inalienably owes to its Creator, and in which no one else dares intervene. Claiming a right to self-government for ourselves on those grounds, we cannot deny it to any other. To claim you have a “right” to enslave another is to drain the language of rights of any purchase on reality. To claim a “right” to destroy another’s life in one’s womb is also to drain away the substance of the word. To abort its career in history.
In sum, I can think of no book more important to the survival and good health of the American republic — and its most precious experiment — than this little masterpiece. Too many who argue about the elephant in the middle of our room focus exclusively on choice, or exclusively on life; it is Hadley Arkes’s genius to see that the fundamental issue is that of natural right. Forget about life for a few hours, and forget about choice; get the question of natural right straight. Then much else will in due course make itself clear.
— Michael Novak is the winner of the 1994 Templeton Prize for progress in religion and the George Frederick Jewett Scholar in Religion, Philosophy, and Public Policy at the American Enterprise Institute.