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 hol