Transcripts For CSPAN3 Hadley 20240705

Now, id be remiss in introducing you to professor arcus if i did not give you a glimpse of the author behind a book such as this one. Born in chicago world war two, he attended the University Illinois when the school had a campus on. Chicagos famous navy pier. He then took a ph. D. In Political Science at the university of where he studied with, among others, leo strauss and herbert story. In 1966, he began academic career in the Political Science at Amherst College, a place that would be his home for over 50 years. In 1987, he was named the edward ney professor of jurisprudence in american. In 2017, he assumed emeritus status from the college. He was the main advocate, an architect of the bill that became the born alive infants protection act. Professor arcus led the testimony on the bill before the Judiciary Committee of the u. S. House of representatives in 2000 to president george w bush. The bill into law with professor arcus in attendance. Mere natural law is the eighth book by professor arcus after such wellknown titles as first things and beyond the constitution. Joining professor arcus is judge neomi rao of the United States of appeals for the d. C. Circuit. Were grateful and overjoyed. Shes with us tonight. Judge roe was confirmed the d. C. Circuit in 2019 after having served under president as head of the White House Office information and regulatory affairs. She taught as a professor at the antonin law school at george mason university, and while there started the center for study of the administrative state. Now named the C Boyden Gray center for the study of the administrative state. She is a widely published scholar on the subjects of constitutional law and administrative law. And she may now even be said to be dipping into natural law in her scholarship, which we wholly support. She clerked for both judge Justice Clarence thomas at the u. S. Supreme court and judge Harvie Wilkinson on the u. S. Of appeals for the fourth circuit. She is a graduate of the university of chicago law and yale university. Now back to professor arcus, one jurist who read advanced copy of mere natural law remarked that its professor arcus, quote, most accessible to date, which im sure that jurist meant as a compliment and not a knock on his earlier works. Mere natural is his first book not published under an academic press. So i think that jurist remark might have more to do with how from the bottom up, this book really is. It takes its readers on a tour demonstrating the elegance, simplicity, coherence and inescapably v of the natural law. For readers seeking to give an account of themselves and the world beyond them. And i think thats the hell lead us on tonight as we launch this. So please join me in welcoming professor hadley arkes. We have you have to hook me up that does that work . You hear me . I should tell you, garrett was my student at amherst. The class of oh nine, and his late dad was my student in the class of 79. I also authored the defense of marriage act, which was struck down by the court in 2015. Thank you, everyone. Coming. And i want to thank our friends at cspan. You know, they still play at cspan this debate i had with Jesse Jackson on Capital Punishment in new york in 97. They still this talk i did on the jurisprudence, the new deal at the Supreme Court, where mr. Rehnquist was kind enough to come in to introduce me. They sent a crew up to amherst to do one of my classes. So i just think if they do a whole string of these things you can watch me aging. Without were turning from that bushy headed young professor into this remnant you see before you. A while back, congressman found himself in snide at his own syntax, and he said, a friend of the farmer, one of whom i am, which. And id say a fan of neomi rao, one of whom i in which and im so grateful to you know me for kindness in a large nature and coming in shes i was ready at the beginning for the start. Good, i think a brilliant career as a jurist. A personal note in candor, i may tell that ive lost people so dear to recently that it seemed quite possible that it might not make it to tonight. And that flicker of worry brought back that scene in Tom Stoppards the invention of love reimagines the 19 year old a. E. Houseman at oxford, giving his sister, a kind of riff on, gods words to moses as he showing him the promised. They do not enter, and he has god saying, im giving you all of gilbert. And to that im you often the following im giving you all of the land of a tribe and manus and judah to the utmost see, but not including whales, which i, which which i, which saving for the methodist. Well, any case, weve reached the day ive lived to see the point of sorrow is that my beloved tomorrow would not be here with us today. Stoppard asked by a friend about his new play, rosencrantz and guildenstern are dead, and he said, what is it about . He says, its about to make me a lot of money. Well, i hope this book is about to make tom spends a lot of money to compensate him for my pressing to do things my way and to confirm him for picking up this book where he saw only the first few chapters. So into it that what i want to do is give you take some moments to give you in a kind of free form way what this book is about a former Amherst College remark that has a theory of natural law. I said, when you say that you rather youre holding back and wholesome watching theories was passed and somehow able to form judgments on the of those theories that are plausible or implausible. True or false. And i said, take me back to grounds from that. Youre making those judgments about the things you reliably know and youve reached the ground that some of us take to be the ground of the natural law. My dear, late dan robinson wrote 18 academic books, said he wanted as the epitome on his tombstone. He died without a theory. The other thing and he is that he was drawing on thomas read the great scots philosopher who is read closely by james wilson john adams and it was appealed to commonsense philosophy that thomas read was read. It was an appeal to those maxims of common sense that the ordinary person simply had to know and take granted in getting on the business of life before he could start trafficking in theories. So before the average man was not bound to drink with david hume about the meaning of causation. He knew his own act of power to cause his own acts to happen. So some of us have followed, read and found the ground of the natural law as robinson said, in those maxims of common that the ordinary man naturally knows and takes for granted. These were the same maxims of common sense and the principles of right that the founders knew before they framed the constitution. And they were the principles of right that would be there as they understood even if there were no constitution. Much as John Quincy Adams would say later that that right to petition the government was simply implicit in the idea of a free society. It would be there if it hadnt been mentioned for the first amendment. It would be there even. There were no first amendment. It would be there even if there were no constitution. And the remarkable knack of those of that generation, john marshall, james madison, james wilson, alexander hamilton, is that they could trace their judgments back to those anchoring truths as they applied the constitution and to the cases coming before them. They didnt think that once a judge left the text of the constitution, he was merely looking himself as though there were no moral truths. The text to which the judge could write the appeal informing his judgment, as in our own day, perhaps recognizing the objective, meaning and t loss of biological sex or the human standing of the child in the womb. Now we find that ordinary people lawfully have a sense of what philosophers mean without being able quite to explain it. The ordinary, ordinary folk will. The sense of taking an alcoholic drink not always be harmful, that the harm will depend, on circumstances, a matter of degree in excess, in moderation. But the same man is likely to turn around and say that, well, genocide, if taken in moderation. You know, some of them said a few this week, you know, maybe harmless or inoffensive. Most people wouldnt have on hand the vocabulary of philosophers. But that ordinary man and woman would have the sense of harmless that are merely contingent a matter of degree or circumstance, as opposed to wrongs that categorical, true all instances wrongs that will not be effaced by matters of degree. So much of our litigation over the years on civil rights been confused by the failure to. Recognize that difference between things contingently as opposed to things are wrong in principle, wrong and necessity wrong under all conditions. Most of working here is this we working on the question which used to be raised years. If we separated those kids in school on the basis of race and the reading scores of the black kids went up with segregation ceased to be wrong . Or would we say theres something wrong in principle about it . Regardless of what happened with . Those scores . And so years ago, the university of chicago our place, i heard phil carlin said, how did you get from the brown case and schools to the palmer case on swing . Because i thought brown had something to do with a harm distinctly inflicted on children in schools are telling us now that if kids are on the basis of race from swimming pools is going to impair their capacity learn. Why do we need some new constitutions of separate constitutions principle like a constitutional right to swim or constitutional right to play. But if he thought there was something wrong in principle about this Racial Discrimination, that principle would tell us what wrong with it. Not only in schools, in restaurants, swimming pools, other places. But the most striking test of this point came with loving versus virginia 1967, an interracial. Chief Justice Warren said, weve never seen a case of this kind. Really . You never seen a case of marriage . Never seen a case on Racial Discrimination . I once posed the question what would the case have looked like if law in virginia had barred business partnerships across lines . We had two friends one black, one white going into business, took opera to start a delicatessen. When the court struck down, would they say looking on it later that case established a right to own the delicatessen. Thats right. It was kind of zabars versus virginia all i could be might have simply seen it as one of a vast number instances in which the of Racial Discrimination could manifested. So it made no more sense to say that loving virginia had established right to marry than at zabars versus virginia would have established a right to own the delicatessen. All of which reminds us that the court never did get on the principle shown in the thriving of racial preferences, in college admissions, in government contracts. But the key point was the principle here. Well, what was that principle . Now we may be drawn here to those precepts, so woven into our understanding there are no longer in wear of them. So i used to ask, what do we think the ordinary would say if you told the jones at the time of the burglary was in surgery, recovering or in surgery from surgery . Does anyone doubt that the ordinary man wonder why jones is being price when he wonders, he finds himself backing into proposition that thomas and conte in different ways took as the very first principle of all moral and legal judgment that it makes no sense to cast moral judgments of praise and blame on people who cannot affect the acts in question. So wed say as an utterly first principle necessary for spins when in law. We dont hold people blameworthy, responsible for acts theyre powerless to affect. Thomas reed no axiom of euclid is more evident than that one. Of course that may be the most difficult question. So we know as to whether jones really was under medication or hypnosis. Incapacitated that it couldnt have performed burglary. All of these things are matters quite contingent on circumstances and maddeningly variable. But the decisive quantum wreck comes in recognizing the thing in this mix that is never variable, never contingent, never open to question, which is the principle self. If jones really was powerless to affect the acts in question, he cannot be just blameworthy and responsible for this. That principle never cease to be true under any circumstance. Now that, principle not only explains, i think, the insanity defense, but its threads through our law. And i do think its the principle that finally explains that wrong of Racial Discrimination. And the connection broke in. Then i realize again that its broken in on me. When i was doing a long piece for phil cullen in the Supreme Court review. And the old problem of racial that, actually, me that piece was a 1974 could not. And somebody said that its cited widely you see on the old problem of racial taken seriously at the time of the Second World War the notion of libeling stirring animus and hatred against racial, religious. And in one famous case in 1952, botany versus illinois, kahane was putting out pamphlets urging people to resist the encroach of black families into the neighborhood, threatening to mongrels the race, bringing in aggressions, rapes, robberies, knives. The court sustained a conviction, a statute that barred publication signs that impute depravity criminality and chastity to a whole class of person and exposed to contempt, derision and obliquely. The court sustained. But that great figure and my favorite judge is Robert Jackson dissent. He argued that any action for libel the accused should have the chance to prove the charges leveling. He thought perhaps they should be given the chance to prove his charges, even as jackson said he did not have the chance of proving this reckless and vicious libel. Now, why not . Why was jackson so utterly convinced that he could not . What was evidence . Any amount common sense that all blacks be criminals are given to criminality . Even what the crime rate may be higher among black youngsters than anyone can recognize that all these these boys will not be drawn into the culture of crime. That you cannot drop moral infancy about individual persons based on what is known in the about their racial group. To deny that hierarchy is to back into the assumption race exerts a kind of determine to control of moral context. If we the race of anyone, we could draw some sure moral emphasis is the weather about character. Whether we deal with somebody with great place of frame. Welcome to shunt. But every one of us is a member of a race and if race exerts a deterministic control of our moral conduct, none of us can be held responsible for our own acts. The whole language of right and wrong dissolves but makes no sense to cast these more judgments on people whose acts are governed by forces outside their control. I think that point accessible to common sense. Finally provides the key to the problem, but i think it does establish the deep wrongness of making these judgments. During these judgments basis of race, regardless who benefits or loses from. But that recognition feeds directly into that runs through our cases more than any other. Again, we might ask what we think the ordinary man on the street would say he if he asked, can you tell whether youre dealing with a good or bad person . If we told that he is tall a short, heavier thin that he stutters or hes deaf. My reading that the average man would of course say no and even without a philosophic vocabulary, he knows that people with those features tall, short, deaf, maybe as good, as bad as is anyone else. But he recognizes, as the philosophers might say, that we cant impute to any of these features height, weight, deafness, any kind of, deterministic control of the moral character of anyone. The most dramatic example i can give you on this point. Is probably the example of that dog case on long island in the eighties. And i was at the Supreme Court that day that chuck cooper was arguing the case. The case involved, an infant afflicted with spine, a different syndrome. The parents and their doctors withheld medical treatment for the newborn and the Reagan Administration went to court to administrate and wasnt insisting that there was an obligation to inflict an operator on this child and surgically. But they sought the papers to find out whether the decision withhold care had hinged on the medical judgment or on something else. So i dear ralph winter in the court below said, if if medication were with health care withheld because the baby was dark or black, that is not a medical judgment. Okay. And if the decision here in the case of baby doe hinged on a judgment that a life afflicted with Downs Syndrome and spine a before that was a life not worth living. That was not a medical judgment, but a moral judgment. It was a matter of drawing a moral inference about a person on the basis of a characteristic, a disability that cannot possibly establish whether were dealing with a person was incapable of living a life of moral purpose even in a diminished state. Now, if that distinction that ralph lynch and i were offering, if that makes sense to you, that theres a difference here between, a medical judgment and the moral judgment that the moral judgment was drawn wrongly from attributes of a person that cannot possibly establish anything, a moral significance, nothing in the dispute of this baby could bear on the question of whether the baby had a life worth living. If all that makes sense. I think the question actually presents itself. If we shifted the locale, if this were not a long island, if it were tehran, an arab with a judgment be any different, would it not be just as wrong in any of these places distance space for time to withdraw care on the ground in a life afflicted spinal bifida or down syndrome . Is a life not worth living if we recognize that simple point . We do recognize this judgment of ours does not reflect some ethic that prevails in this tribe of americans. The is grounded in nature in the laws of reason themselves. In truth that can be grasped by any functional person. Theres no way in the world they would not hold true without any sense of astonishment, any sense for doing it. We find ourselves back again into that dreaded nword that dare not speak name the natural law. But at the same time we may see that in striking contrast to cliches weve heard so often, there is nothing the least far about these principles. They may be precise and concrete as they bear on the cases before. There is nothing inscrutable about them. The jurisprudence of natural law, its ground in real principles, propositions truman necessity. Anyone working the sense of things knows that the natural law cannot tell the right price and nature a pair of pants or a gallon of milk. When judges cultivate this kind of with their two bodies engaged at once, when they encounter policies like wage price controls or when rent controls for the sake of saving time, not that great passes from our friend genesis, just brown access we see say what . What was the wrong when the hind hands of the company was it was marketing milk at 0. 20 less a gallon in southern california. And why should that constitute a, quote, disorderly market condition that the government had any justification in reaching the judges who absorbed this understanding of natural law . The logic propositions would not presume to tell us how long a residence of climate is warranted before a community would be obliged. Pay for a publicly funded Higher Education or the education of the children of illegal aliens. Those are judgments that depend on the wealth and generosity and the sympathy of the local community. They should be made only by political figures who have a closer connection to. The condition and sentiments of their own community. The stand for those judgments simply dont rest in the toolkit available. Judge us. So the upshot for us is this a judge sensitive the moral ground of the law. As i have described it is a judge who is likely to have a sharper awareness of the boundaries that mark off the right to, the limits to the reach inventiveness of judges. My point here is that were drawn once again and moved toward my end, drawn once again to those maximum of common sense that we can expect every functional person the grass and the which can be grasped at times even as c. S. Lewis told us by children. And so i propose a problem of this kind. I suggest the scene in which a boy, about seven years old, had set upon by roughnecks in school, beaten up his lunch, money stolen. What path. Do you think his reactions take that he feels set upon without warrant his a sense of grievance, a sense of having been wronged or there is a sense that the kids who beat him up must have been right that their very success overpowering must reveal that was on their side. My own reading. I hope you would grief me is that the second response is quite implores. The First Response will ever be the most sensible response. But if the case we assume that the child already understands that carnal point that was put in place by so forcefully rousseau that the mere success of some people in ceasing and Holding Power of others cannot possibly establish justification for that rule, as though brute force of power establishes its own justification. So who said the mighty man who defeats his rival becomes the heir to his right . And since the mightiest is always emilie remains for us to become possessed of. My own bent is that a jury of seven year olds with grass fed a central point. So we could that the average seven year old understood something of consequence that evaded the read Justice Holmes for when the question was posed to home. What gave the majority the author to rule the minority. His answer was. Majority have the brute power to overcome the major t which is to say the rule the strong one might makes right. Of course we begin in america with a government not imposed force, but one that was meant to draw its authority from the consent of the governed. And lincoln and his first son are literate, gives a marvelous demonstrate arguments, show the rule of a majority under constitutional and moral restraints majority realize its not free to decide everything. That is the only of form of government by the consent the governed. But my dear Justice Scalia said, well, that lovely principle has never been enacted. Our law never enacted in the constitution of the powers of law. But it could not been enacted for the reasons john locke explained. Its one of those understandings that must be at the seed into the possible in the constitution to tell us just what is the constitution that gives us the right for governance of human beings. Several years i heard professor Amy Coney Barrett asked by a student why she respects why she respects the process of law. What makes the positive law in america, different from the positive law installed. Russia. The declaration of independence gave us that anchoring principle antecedent to the positive. All men are created equal. The only rightful governance of human beings depends on the consent of the government. But what makes that principle true. Barack obama professed too urbane to think that all men are created equal was a moral, let alone an absolute. But lincoln and did think this truth about the human being right of human beings to govern themselves. An absolute truth. It was anchored in an enduring that separates men from animals and from. Well, how do we know its truth . But again, i to that ordinary man in the street who would understand the point at once. When asked the question would surely baffle him. Why is it in this age of Animal Rights were still not signing labor contracts for the horses and cows or seeking the Information Center of our household pets before we authorize on them. The ordinary man is surely likely to be baffled if he knows that it makes no sense to make a contract with a being cannot give and understand reasons who cannot weigh his interests, make a commitment. As aristotle told us, theres only one kind of creature who is capable of making a promise, excepting an obligation and respecting a commitment when it runs counter to his interests. But with that the ordinary man would find himself backing into the founding proposition of the declaration that no man is, by nature the ruler of other. The way that god has managed to of men and men. I i nature the ruler of horse and cows and jefferson said anyone who denies that has to assume that the mass mankind were born with on their backs and a privilege few born with spurs on ready to ride them. No one has to order the ordinary man to put it this way. But i submit you its the things that the ordinary man readily understands. When he knows that it makes no sense to make contracts with dogs and horses. That is a series of simple questions which simply trot out recognition. And when it does, its clear that he grasped something that eluded barack. It would be exactly like the situation in platos mino when socrates posed a string questions to two by. And lo and behold the boy is drawing out the axioms of geometry. So the line in plato was that, well, its all a matter of remembering all of this was tucked away his soul. And i simply drawing drawing him out. He sees, as we say, what hes always known, but only now realizes that he does know. And my pitch to you today that its the precisely same thing with common sense understanding of natural law, that one simply prompted with the right questions. People discover that these precepts of natural law are things theyve known all their lives. Hence mere natural law. The restoration of history and of the whole world. Also. Around here. And all these testimonies say we could raise money offshore. Theres an old line. The thank you. Oh, yeah, thank you. Thanks so much. It was really interesting. I very much enjoyed your book. So. Yeah. So im looking forward to this conversation. So i thought, i might start with some of the insights that you were providing towards end of your speech about the relationship between the natural law and the positive law. So great. So i guess one question. As president nixon used to say, im glad you asked that question. So so i suppose in america, once people have consented to form our government, have agreed to the constitution once that constitution positive law is written down and created. What does the natural law do in a society that has a constitutional system of law . Well, first of all, you know, the natural law always has to give rise to a positive law. And kant would remind us before behind any positive our you see is some natural law that tells why you would be warranted in having a law the first place. So we see the science saying 65 mph, 30, theres nothing of moral significance about those things, but theyre preceded by underlying natural law that tells you why you could be. In restraining the failure people to drive at speeds that put the life at hazard. But also it works in an odd way to say we may be obliged to respect an unjust law. Why lincoln felt obliged to respect the fugitive slave cause it was nominated bond. I mean, its its a legitimate government. We made a commitment we would not recognize slavery principle. We not use that odious name anywhere in the text. We block out the expansion of slavery from the bank, from without and block it with once m but until it could be changed. He was obliged to respect that law until it could be changed in a lawful way. So id say its at work all the time. Its a do you agree with lincoln about that observation . Was that do you agree with lincoln about that . About the future circle . Well, i mean, that, you know, that you shouldnt follow an unjust law or that you should that you must follow. And its not stalins russia. We understand there were deep princip was about the government by consent from which those things emanated. You may have you may have criticism, but youre not ready to reject underlying principle that put somebody in the position to make that positive law. Mm hmm. So. But it all you say. Well, the natural law explains why you do have laws. What do you do . Have laws . I mean, a law restricts personal freedom. We say you should there should be justification for that. Well, how do we get there . Well, its that logic of a moral judgment. If we say its wrong for parenthood, tortures children for whom its wrong for any parent. Whats the logic of moral judgment . Well, you come to that. This is what in aristotle we come to recognize that if its wrong, actually wrong, wrong for anyone to do, wed be warranted and forbidding that wrong to people generally are universally which is say forbidding it with a force of law. Thats the extent that were basing that question. Thats laws at work. And of course we say that biped who conjugates verbs. Why do we consider him a bear . Right. We have to assume some rights are wrong. There must be standards for judging rights and wrongs. So its a thing that i used to say that for the judge to get through the day without using natural law is like raising the question can i order the coffee without using syntax . Its always there. Hes using it every moment to sit directly and form legal meaning. Whats. Does the natural law directly inform interpretation of the positive laws . Should they . Oh, sure. Lets take. Lets take lincoln on, the fugitive slave clause. Hmm. Its nominally the bond. And he said. But now under what premises do we enforce it . Do you assume that any black person running free in the north was a slave . We presume favor of his slavery. And we put the burden on those who to be free. Or do we reach into declaration . Say, how is human being . We presume free and we put the burden on those who claim to be a slave. Some of us think it does. Hes reading the positive. All the constitution against deeper principle of the declaration. I say that thats always remember that when that famous case i didnt beyond the constitution remember Felix Frankfurter in the old almanac case saying this was the fifth amendment say no person shall be compelled be a witness against himself in a criminal case. Frankfurter was raised. The question is the accent on himself . If we give him immunity, can we force him to testify against his friends are republican in the communist party or is it on compelled . If its found compelled, we may not be able to force him to testify at anything. Well, how does he get to know . Frankfurter said it. Cant be taken literally. Youve got to go beyond the text to find out what was the principle . Whats the understanding behind that text . And remember, just friendly would say, my goodness, know, you have somebody whos been involved in a kidnaping. He could tell us whether victim is still alive is still in the country. Why would be forbidden to ask to ask him to give us influence on that and hold it against him when he cant. And of course, the whole question of. Well, can we take the can we take blood out from your singing nails can get the paint on. Can i be forced to stand in a lineup to be recognized . Well, all these questions some of the words that exactly. Explain themselves, you have to go back to see what is reasonable construction give them. All right. So its the reason of the law or the logic of the law. Right, right. Right. Principles behind it. One of and youre a prime example how to do it. Say you know your right to ask me how to do. Well, you know, its a its a its something been thinking about a lot, actually because im teaching class at our alma mater that university of Chicago Law School on positivism and its critics and the teaching course. Yes. Oh, my gosh. Its. How do we get into it . Well, so weve been reading a lot of natural law theorists and theorists about this theory. I spent a lot of i want to get away from those theories that natural law thinkers, you know, from founding and sort of moving up through the present, some of some of your works are happy, but you dont. Its a question that my students in reading some of the older works have asked me is can you have a conception of the law without a belief or an understanding of the divine of god . And im wondering what you think about that. Well, theres an answer to that. That it was Thomas Aquinas saying, the divine law. We know through revelation, but the natural law we know for that reason that is accessible as you as human beings. I just simply a passage occurs in the in gospel of citizen god. I felt as in chapter 19 he said, let me explain this. Important thing for the sake of unbelievers, let me not appeal to faith. But just to give, to give you reasons. The catholic position, say abortion. Remember lincolns on line that the christian, when he imagined himself engaged in the conversation. With an owner of slaves. Why you justify make a slave the black man . Is it because you are less intelligent . You are beware of the next fighting that comes along more than charles is. Because darker the you are all the work out the night next light never comes along with the complexion lighter than yours enslave you simply principle reason. And that was the catholic position on abortion is that its not no no map, no pill for faith. Its a combination of embryology principle reasoning. Why that offspring in the womb anything less than human. Thats the. This is a deaf mute doesnt have arms and legs. Other people lose arms. The legs, the course, their lives without losing anything. The upshot is there is nothing you could cite to disqualify the unborn child as human being that would not apply to many people walking about outside the womb. And the point is, you dont have to be catholic to understand thats the part of the natural teaching to say no, we dont have to. But of course, where does this all come from . It comes from a creator who endowed us with rights. And at a certain i think our fans arguing over religious matters, belief, say a religious may come into our lives not as plea to be excused from the burden for the laws that are imposed on everyone else. It may come into our lives we use lincolns lie that no made in the grave image was sent into this world to be improved. It to be a nothing. Know if that line you program is sorry that i was given a commission ago to build a piece on the Holocaust Museum and went alan greenberg, the architect. And we went through we took a turn. Many people here have turned and we saw the vast fat filled shoes, the nazis, things that they could and use a galley or croakers would keep flashing back or those searing words of justice mcclane when hes dissenting in dred scott, he says, you may think that black man is chattel, but hes a in the impressive this make or hes amenable to loss of god and man and he destined to and existence. He has a soul that not decompose was material existence comes to that. And i said if the medical situation is the nazis look at the scene they thought the shoes were the durables see. And id say ive met a dear friends liberal friends at amherst large sympathies human nature. But they even they realize they cannot an account of the wrongs of the holocaust and the wrong of slavery, that someone will think like make clear. But he did it by, of course, to you. Yes. Its a biped who conjugates verbs. But theres something precious. Theres something that makes him a right sparing being. And i think that we do have to appeal to the to the christian jewish tradition. Yeah so so one of the things you also alluded in your comments, i think this is a question that people often ask about the natural law is this what does it mean when when people of of good faith are reasoning something and they come up with different answers about basic . Do you think its possible to, have a good faith disagreement about a basic or is someone just wrong . Well, it could be. One is wrong, but the answer is lets lets talk this out. You know, as c. S. Lewis says, an argument doesnt make sense unless you presume that theres standards of judgment. I used to say, know when i did the course at emory and the first thing i said this fourscore carries a castle that everything here could wrong. Because if you say that you presuppose you have access to standards of judgment to tell this thing black man reasons. So so you see some of our fencing you see judges are using moral reasoning and look at the theory that he things they do will show them well stop using moral reasoning. Its a very clever very clever move. No, its never affected. Whos that judge . The west coast, then in san francisco, stephen reinhart. Reinhart. Yeah, yeah, yeah any three out of 24 times on your mike, you only give it to him. Okay. I called in chris. I get a whole pattern of that. Ive for going natural law. These things never, never stopped reinhart from going crazy. Say, if you think people are making mistake using this reasoning. Well, show them the wrong. Show them what is specious. It. Thats must be the answer. Thats interesting. You know, i feel scullys to say poles natural law reasoning is that we have no consensus on it. And his friends used to say, oh, did you get a consensus on that point . Because we get our ballot. If you asked us, you wouldnt have had a consensus on the point, you needed a consensus to to to make to offer these judgments and neil gorsuch revealed to us that t even people who are originalists. Can this and textual us can disagree and somehow that doesnt establish that this disposal notion that originalism may have some truths to prevail. Yes. So. So one of the things ive been thinking about and im wondering what your thoughts are about this is, of course, interpret a text or to interpret the constitution. A judge has to look at background principles of law. Right common law, certain fundamental axioms of reason in terms of thinking about what the law means. Do you think that those type of background legal under are are the same as the natural law . Are they different from what we have in mind know me for the background as well. Well, you know, so just, you know, one of the easier ones is common law principles. The common law has been developed over time there. Theres a tradition in the common law. There are certain basic principles in the common law. You know, there are certain other legal principles that are sort of well established in the angloamerican tradition. And im wondering if you think that is different. You know, sometimes in the book you talk about moral reasons that judges should give moral reasons. And im wondering if theres any space between the moral reasons and the traditional legal background norms. What we take it to mean, i can i can say the number of common law cases over the years that establish this point. Im the number of cattle. Okay, maybe, you know, its the problem we get with good pharmaceutical by raising this question with this game with whats with the washington case, with and the Second Amendment as talked with scalia said you are appealing to a principle which i took to mean the right of an innocent person to fend off an unjustified assault. Right. Right. I said, well, those words are intrinsic of amendment. So where did that come from . Did you say james wilson and blackstone said it . And many people read at the time that would turn our jurisprudence legislative history. I think. Are you saying that there a deep principle on the right, a person to have access to the weapon when needed to defend the self . That does not depend at all for being made explicit. The text. And he said i have to think about that. Okay, thats hard. Question okay. But heres my point. My pharmaceutically adult is just making this point. You as clarence in one of those recent cases, think about this sort of all things about guns, all these statutes going back and just saying, but none of them are necessary. If you think there was an principle that established the right of an innocent person to, fend off an assault. If that is true, you didnt need all the background cases. Do you think the cases are evidence that theres a a fundamental principle. No, i dont think so. The question is it a principle you teach . Is it wrong to hold people responsible for for acts that were powerless to affect . If i said, look, how many people recognized that to contrary to propositions, cannot be true. Hey, heres somebody 1940s and heres somebody the 1640. And does that really add. If we grasp the principle itself, so we may be fooling us. Its like the thing we had in the dobbs case, two different views of history. I say we have this history shows that abortion was never considered a right. The other side looks at that and says, well, youve shown us is that doctors really believe these are human beings and are and both them, henry joffe, would say there are two lines, two sides of a concave line. Its the old youthful problem is the old good because it is old or its become old because theres something eternally good about it. So then we ask the question, those statutes were silent on abortion in may 19th century. Dont respect because theyre based on findings of embryology that were as true then as they are true now and thats how we decide them. But thats not the way the court reasoned about it. They simply said all of showing it was never a right. And the show then at what they never reasonably said but catholic is still right opinion say isnt an interesting some people prolifers actually believe life begins conception really believe its a point established embryo for so many years. You know if the court had said the historical record to be respected because it reveals judgment made on basis of truths then that are to be credit now for the same reasons that were credited, that makes a profound difference. I think. Yes, maybe can Say Something a little bit in your in your book you talk about dobbs and suggest as well and suggest that that perhaps justice or we dont have by some of my dear friends involved that but you suggested that perhaps it would have been better if the majority opinion relied more on moral reasoning and and maybe you can say a little bit more about that. Like what would the difference between what the majority did and what you would see as as the more ideal opinion . Well, lets just nothing exotic here back roe versus wade. The law is from texas did a remarkable exquisite brief drawing upon the records of embryology to establish that offspring of the who has never been anything from humans from first moments making this nourishment this smother it has never been part of the mothers body. The court ample grounds there at that point to say oh, youve just made a convincing case as to why the laws of texas should cast their protections among these small human beings. And after all the laws of the ama have always been indifferent to the size and wage and age. The victim, nothing extravagant here. We do it all the time and its worth just before that you may recall they they sustained the laws of the district of columbia and on abortion in voyage. What are they doing when they make decisions about well can you can you can you were you justified in in searching the drive wider the ecology whatever you call them making decisions the time and whether the law was justified to make whether we were justified in searching. You know theres nothing exotic here. All materials were there. The dissenters in rome never picked up on that point. They persist. They simply drawn felt to the point that abortion is nowhere mentioned in the text of the constitution was never mentioned. Marriage was never mentioned in the constitution when the court acted in loving and as jerry points out, the law have ample reason federal government ample reason to deal with abortion over the years in the military outposts abroad diplomatic outposts the district of columbia the territories. Its not that there was something about that made it outside of the national business. They could have just done the most direct thing heres the evidence. Heres evidence on it. Why does that evidence not . Are we using moral reason . Well, and were using while reasoning time were making judgment heres somebody is going to be restricted loose of freedom to do something ordering abortion it the burden must to us to establish why this would be justified. Why this law is rightfully justified even for people who disagree with it. Thats a heavy burden for to take. But i see i submit. Well, then we that is the more reasonable law that is i think our best judges are doing when the these these reasons brought forth it. I think were moving to audience questions now is that right if anyone has a question and with so many friends and i dont want to let go of neomi rao flowing in will flow through q a time. Yes. Now now we can have some time her so the board open. Your professor all i her okay so you have a talked about factual biological fact but often times judges receive legislation thats based on legislative fact and legislative fact yeah legislative facts that the the the intent of congress or in the statement of facts of the legislate when they pass a bill says x, y and z. So when there are different legislatures that come to different conclusion ins or have different facts that are presented them in record . How do you think its the role of the judiciary when that we legislative facts there might be other things in the record then the legislature had considered that you know because there different amicus briefs with more evidence what what what what legislative alleges alleges mean the legislative finding of fact all as in the skinner case that think that certain forms criminality are genetically transformed possible and that that includes chicken things. Well. Its quite legitimate for justice to say well i douglass said well the problem with this its in your sterilize saying the chicken thieves but not the embezzlers for stealing things that are far worse and collins stone bless them said i think the problems here would be would be removed if with the sense of symmetry you went out to sterilize both the ambassadors and the chicken thieves and but we should he should have the chance to show that that that that crime was genetic. Lets just say put the burden and the to show us how they know this the test to test the finding of fact you know but put me on did have enough a different kind of a case in mind that the we must know something important to you must have in mind right now there are opposing legislation is that are coming you know state legislators to opposite conclusions on you know lots of issues. Well we have we did the boring of life had the preamble wed say if you accept this bill to protect the child who survives the abortion youre that the child mark for an abortion has a claim to the protection of the law even if nobody if some if and hes not wanted and if youre saying that you must be implying that the child has some intrinsic significance that could not hinge on whether anyone wants him well were going to the floor with those findings and we insurrection within the Republican Party the republican prochoice has threatened to close down the house in the president ial election if we went to the floor with those findings. Yeah weve seen works and then once try to establish in the pawn life act we try to take something from. Marshall in contrast to virginia. Is there any any arises under the constitutional must come within the reach of the judiciary and we thought quality of that is that anything comes of the reach of the federal judiciary must come within the reach of the lets just lay to branch. So if the court can articulate a new right to abortion. Some found somewhere in the constitution. Lets just say the branch should be able to vindicate same right and the same clause of the constitution where. The court claim to find it and filling it out, making its limits. The one thing that should not be tenable under this constitution is that court can articulate a new right and then assigned to itself a monopoly of the legislative power in shaping that right. And its not Just Congress that shapes that the executive branch very much on shaping that right through regulation as well. Exactly. Exactly exactly that that is that that is indeed the problem. Yeah. Which is more trouble roger or chris. Yes. The actual question is when you come to the other. Okay, would you describe the claim, the recommendations if thats an accurate description in your book, is it supposed to be a description of what natural law is or is it a more normative statements about this is how you should apply it, not apply law, but how you should recognize it. What do you take to be the force of the proposition . People should not be held blameworthy for acts that were powerless to affect. Am i saying its normative . Do you think its true . And so its what we cant call the law of reason why the law took territory to actually propositions cannot be true. Why is it a law . Because its simply common sense you respect for its truth. Thats all. I think thats what if that if we think that these things can be drawn back to anchoring principles that have be true of necessity and, then that is it. It commands our judgment as a matter of reason. Now you may have places where you think its imprudent, act upon it. We dont know what well find out, but. The first question before is, so what what is the ground that would be justified for this law . So again, the problem is if you think these thing theyre not theories up i think theyre grounded in laws of reason and if they are true, then that carries its own force. It was there another angle on the case for that im saying that question. Okay, roger. Look out. Roger from the cato institute. Naomi, ask you to respond to a situation where two natural law people reason, different conclusion. So im going to refine that a little bit. How do you respond when a natural law person and a natural rights person come to a different conclusion, a natural law person with a more or less thick theory of the good and a natural rights who does not make pronouncements on the good, but only on rights. Theres a whole level of theory have to take apart in order to answer that question. And and you and you know that and you know that the problem we with that is saying, i dont care what you call them whether is natural one, one or natural. Tell me what the argument is just tell me what the argument is. So give it say give me the argument that would be made so. Its oh, im im a natural because know you know, i come to that physics of saying that that will give you vote distinguish roe v wade and griswold v connecticut yes. How would you just distinguish those two cases was one decided wrongly and the other rightly, where they both decided rightly both decided. Oh, i think, you know, my judgment of roe versus wade. Yes, okay. Okay. Well, of. It was i think it was. It was griswold was of the right way. I mean. Byron white said, look, you know, its so this a serious problem. There is a serious argument. The contrast option about that. Youre not simply a device. You change the whole intention that other people, as they involve themselves in sexual relations and that was an argument. There was there an argument for that . But at a certain point white was arguing for the right of a married couple to have to contraception. And he said at the same time, of course, that mean that you cant bar contraception to unmarried people. It doesnt mean you cant bar the sale of conscious options in bars and taverns for one night stands. Hes still framing the problem in the the cover of an intimate, committed relation. So it lends itself to things of that sort. I dont i still i dont think griswold should in fact, entail a judgment that cant cant put a contraceptive. To two youngsters or to have them sold in taverns for night deals. I think quite an arguable question. So we could go on, but that would be enough for now. Well, that was with with that getting into trouble, cato. Oh, you know, and not you know, i, i relied on roger when i used to walk into that place. I mean, otherwise id have to have to crucify sam gowland of garlic, you know . I know the argument, you know, but but as long as roger was there, i had some guardian. Okay. Oh, we have no time for one more. Um margaret. Oh, my gosh. Margaret oh, by the way, i cant. I cant go to st anns. Im right. Okay. From the point of view of the relation, you sketch between natural law and positive law, would it be correct for positive law to define in positive law the principles that it acknowledges . For example, tuples equals four . Presumably that would be something that naturally that that would be a natural law. Would it be correct for a positive law to define that, or rather promote institutions that teach that and criminalize institutions the dump . So you know what im with is would it be so when . Okay, let me put it this way. When sent back the question of the personhood of the unborn, back to the states, was it not actually decide that the unborn were not persons effectively by making it simply matter to be decided by positive law as opposed to being wrecking noise by positive law . Well, by positive law could say, yeah, were going to stipulate that. That people should not be blameworthy for acts are powerless to you can you can put many of these these axioms you could put them in. I know i have to do a manual about what the judges can do to these things i mean after all you go black but a simple sentences about public funding of of of of religion that created a whole new jurisprudence we could do something colorful by putting in the critical lines but the question there is once again. What is your ground for withdrawal . Whats the point of extending this label and withhold it, except youre trying to withdraw the protections of the law from a certain being. So tell us, what is the rationale behind why are you seeking to withdraw the protection of the law that what is what whats going on you that you feel pressed to withdraw the notion of person remember i kind of trouble when i said yeah i real problems with people moving a whole class of persons from a protected an unprotected class by simply shifting the label. Thats not a person a thats not a person thats a thats a fetus. So im going to raise the question why, what is your justification for moving doing this . Youre shifting one person because you want even shift. Is this being interpreted level of protect, of a protected or what is your reason for keeping it and just thats thats essential how i put it. These these are cant be other than human beings. So then what is the ground which you withhold that protection. And of course thats why i think the court have done that. The court could have. Sam is what up to the threshold he theres no principle ground for denying the human standing as a child. But he left it to the pope, the political class, to draw the conclusion. But the political classes are befuddled and timid and have reluctant to speak about those things. Thinks that if you planted, look, we are dealing with a human being, lets get clear that predicates in place. Well, then the congress can act to protect those human beings when the protections of law are being withdrawn in the blue states and. The federal judge, a federal judge could be going through what we did in the fifties and sixties when jackson and frankfurter couldnt, you know, be sure could reach the the sheriffs who killed black suspect x. We should not undermine local officer it took us a long while of federal judges working themselves through the course of federalism to reach the point where they realized with a Price Campaign which the price case of a 66. Yeah federal government can act directly for the sake of protecting those lives and at some juncture now joining the same reasoning that theyre using the fifties with the protection of law being withdrawn from the south could say well weve establish this weve. Its clear its a human being nothing other than human being. And so what protections of law are being withdrawn from a whole class of human beings the states. Well, the federal civil judge now, im hoping that sam alito now see things going that same. He he the nerve to do it. And im hoping that be the one who to to finally it. All right we had one more question thats coming right back to the front row for roger. Why not . Or those others . Okay, chris. Oh, chris is going to tell me all the historical i have to correct. Okay. Public. And your thoughts you mentioned how it was the papal lawyers who invented human rights and the 11th and 12th century. It was harold berman, one of robby georges manners, who is now discarded in favor of john. Theyre the ones who abolish lineage, which is slavery, slavery of european peasants. Do you use them at all or do you mention bermans book . No. Okay doing in another way. There are many sources, many sources flow into this book. Youre absolutely question. Im sorry. Its about the so a apparently i am told by my hasidic friends that in in judaism in orthodox judaism and of course there are different faiths. But in orthodox judaism, traditionally, the principle in the case of a of of a fetus is to save the life of the mother or the child. Naturally, the presumption then is to to theres no, no right to abort. Thats clear. But if there is a question whether the mother might or the child the presumption is basic clear that bottom line is to save a life. You probably know the whole right context. So what is your what is your opinion about that approach to to the whole. I think i think the common sense of if you try to save a life, you isnt not it. Well but that may involve killing a fetus thats okay well thats your intention is not to kill the fetus. Right. And the double effect youre not willing to death of the fetus, the death of the fetus may be a regrettable byproduct of something else. Youre doing these. Things are now exceedingly rare, but if let me say one more thing to finish another some other note, im a marvelous student. I am when my funniest now doctor skip a seal once on his paper. Your skull said psychologic distress for abortion. He said, look, there are people who suffer distress as a result of hearing the fascist, sexist ravings of their professor three days a week, 14 weeks a semester. Its a solution to kill professor. Obviously not. What do you do . You carry him through to the end of term. You wait until all papers are and you give him up for adoption. This is such gem to have hillsdale in in alex it. Sorry, live in alexandria in washington dc and to host these things. So thank you very much. Also tom spence, regnery thats hadleys publisher time. Tom, thank you very much for being here. Judge. Thank you for your thoughtful questions. All of our friends at james wilson institute, if youre not her email list, you can go to our website or give us your card. We will do that and handily. We want to thank you for your new book and, a wonderful contribution to the literature and to to all of you and were going to have drinks and refreshments outside when you when you do leave and go to the first floor im told theyre giving exams tonight so maybe on first floor if you have the answers, you could just put another piece of paper or something. All right. Thank you much. Good