Albert Mohler:
This is Thinking in Public, a program dedicated to intelligent conversation about frontline theological and cultural issues with the people who are shaping them. I’m Albert Mohler, your host and president of The Southern Baptist Theological Seminary in Louisville, Kentucky.
Hadley Arkes is the founder and director of the James Wilson Institute on Natural Rights & the American Founding. After earning his PhD from the University of Chicago, Professor Arkes began a 50-year-long teaching career at Amherst College where he served as the Edward Ney Professor of Jurisprudence. In addition to his teaching, Professor Arkes has been a sought-after voice on issues of American legal philosophy, American history, constitutionalism.
He’s written for outlets like The Wall Street Journal, NASA Review, and the journal, First Things. He’s the author of eight books, but it’s his most recent book, Mere Natural Law, that is the topic of our conversation today. Hadley Arkes has been a conversation partner for me through his books for a long time.
Professor Arkes, welcome today to Thinking in Public.
Hadley Arkes:
Reverend Mohler, thanks so much for having me in. I just can’t believe you’ve been reading my books all these years, and that was such a heartfelt meeting in Miami when I first met you. We had a picture together. Thanks for having me, and it’s so good to be here with you.
Albert Mohler:
Well, I’m really, really thrilled with this because it’s one thing to have a conversation with a man through his books. It’s another thing to have a conversation in person and, in this case, eventually in public. The occasion is your most recent book, Mere Natural Law: Originalism and the Anchoring Truths of the Constitution. I want us to have a great conversation about that, but I’m really very intent upon asking you to kind of trace your intellectual pilgrimage a bit for us because I want to set the table for the conversation about this most recent book.
Hadley Arkes:
Well, I think it began at the University of Chicago. I was drawn by Hans Morgenthau, but Leo Strauss was there, the great Leo Strauss, and it’s amazing. You’ve heard of Strauss?
Albert Mohler:
Oh, absolutely. Yeah.
Hadley Arkes:
Those first moments in his class, who’s there? Young seminarians, retired gray-haired men from the service, young, aggressive Jewish kids from Chicago. What did these people have in common? They’re all standing against the currents of relativism at work in the college. The appeal was to, of course, the Bible and to the Greek classics, those two sources. Well, I thought Strauss was well over my head.
It was just as Socrates was said to have brought philosophy down out of the clouds to bear on questions of practical judgment. It was the great Harry Jaffa with his writings on Lincoln who brought Strauss out of the clouds for me. It was discovery of moral truths and necessary truths not relative to the culture and how we kept persistently drawn to that. So that brought me into the course at Amherst called Political Obligations that led to First Things, the book, and everything else I’ve done emanated from that book.
With Beyond the Constitution, I was trying to show how judges in the course of things are compelled to look beyond the text to those principles that were there before the text, the principles that the founders knew were there before the text, the founders they drew upon. The founders also understood that those principles would be there even if there were no text. So that became my vocation in a way. So I just kept applying it.
I guess the point was, Albert, to show what would these cases look like if we view them through a different lens, through the lens of the natural law, that we have access to genuine truths, to moral truths. When we found them, we realized we’re doing more than declaring what we’ve discovered in this tribe of Americans.
Albert Mohler:
Professor, the average American, I think, thinks about thinking only episodically. But insofar as the average American thinks about thinking, there’s an awareness that there is a basic shift even in our lifetimes towards a far greater embrace of relativism and a far more common denial of objective truths. And yet, in the academy, it has been there for the greater part of 120 years, and it needs to be traced out. You actually do a marvelous job of that.
But the point I want to make is that the average person would, looking at America’s, say, thought class. We think that it had always been this way when actually the country began with a very different set of ideas and is premised upon a very different set of ideas.
Hadley Arkes:
Right. And they were accessible to ordinary people. What did, “All men are created equal,” mean? That no man was, by nature, the ruler of other men in the way that God was, by nature, the ruler of men, and men were, by nature, the ruler of horses and dogs. If you told an average man today, why aren’t we signing labor contracts with our horses and dogs? He’d be befuddled by the question because he’d understand there’s only one kind of creature you can make a contract.
Only one kind of creature who would understand what it means to make a promise, make a commitment, and respect that commitment even when it runs counter to his interest. Well, the people at the founding understood that no man was, by nature, ruler of other men the way that God was, by nature, ruler of them, and they were, by nature, ruler of dogs and horses.
Jefferson said in that famous line, “Whoever denied that had to assume that the mass of mankind were born with saddles on their backs, and the privileged few were born with spurs on, ready to ride them.” There’s nothing mystic. My point is the theory classes, I’ve appealed here to Thomas Reed and those precepts of common sense that the ordinary man has to know. He still knows them.
Albert Mohler:
Yes.
Hadley Arkes:
He has to know them before he can start trafficking in theories. What you’ve got is a vast theory class, people who’ve just spent their life absorbing theories. They can’t see any longer, but the ordinary person can readily see. Can I give an example for the … Let’s say the transgender case with Gorsuch writing in the Harris case. It comes to the judgment that if Anthony Stevens earnestly believes he’s a woman, to deny that is to engage in discrimination based on sex as known in the Civil Rights Act.
Therefore, anyone who refuses to respect that claim would put himself in peril, himself and his employer, for constituting a hostile work environment. Now, the conservatives here say, “Well, that’s not the way it was understood in 1964. That’s not what people made of it.” But I said, “When they do that, we know what the play was going to Be.” They’re going to invoke the old Lyman Trumbull card from 1868 when Lyman Trumbull had to assure his colleagues up and down that nothing in this new 14th Amendment was going to challenge those laws in Illinois, as well as Virginia, that barred marriage across racial lines.
He knew that if he couldn’t get that assurance, that 14th Amendment didn’t have a chance of passing. So now people would come back and say, “But look, Lyman Trumbull didn’t understand the full implications of his own principles.” After all, the life of moral experience is a life of discovering the implications of our own principles that have heretofore gone unnoticed. So what we’re going to hear is we have a more amplified view of the meaning of discrimination based sex.
At that moment, Al, the only move that you can make, it’s not to the text, not to the dictionaries, but to what sex is. So the Congregation for the Doctrine of the Faith once said, “There’s not always been an Italy. There’s not always been a Hungary. But as long as there are human beings, there must be males and females.”
Albert Mohler:
That’s right.
Hadley Arkes:
We can invoke Genesis. But that is how we are constituted. That is the telos, the purpose of sexuality. So now we have this situation. Steven says he’s earnestly become a woman. As soon as he walks into a locker room, any ordinary man could see what is specious about that. So here’s the trick.
Albert Mohler:
That’s a very gentle way to put it. What is specious about that?
Hadley Arkes:
Okay. Here’s the combination. How much training, how many years spent in absorbing theories of statutory construct can lead an accomplished lawyer to offer in a portentous way a judgment that any ordinary man could see is ludicrous? So you say this is exactly the sharpest tension we have. You saw my line with Jefferson saying, “We could give a moral problem to a professor and a farmer and the farmer is as apt to get it right because he’s not going to be distracted by artificial theories.”
They call them theories. You’re absolutely right. You have an elite, through the advantages of higher education, have talked themselves into all kinds of esoteric theories which make no sense to the ordinary man. I used to say, “Nobody is a relativist where he lives.”
Albert Mohler:
Absolutely. No one’s a relativist. Even someone like Richard Dawkins said, “At 33,000 feet, you believe in fixed laws at 33,000 feet.”
Hadley Arkes:
Well, the Big Bang came in, didn’t it? And it brought a lot of things in with it.
Albert Mohler:
Well, we are living in the world of theory. Many people think that debate is quite modern. But, for instance, if you look at Oliver Wendell Holmes, Jr., I mean he basically is already critiquing the academic world as being the world of theories.
Hadley Arkes:
What he puts in place is an even worse theory. He says the purpose is to purge all words of all significance from the law altogether.
Albert Mohler:
Yes. And he’s been stunningly successful.
Hadley Arkes:
I’m afraid. So it’s amazing, stunningly successful. To ask them on what ground does the majority rule the minority because the majority can overpower the minority, which is the rule of the strong. That is offered to us by one of the premier jurists in the country.
Albert Mohler:
Yes. More on that in just a moment. I want to throw the meat on the grill here for a moment and say that the unique contribution made by Professor Hadley Arkes has to do with a critique not only of the theories of the left, but the theories of the right and, in particular, when it comes to jurisprudence, the Supreme Court, the Constitution.
You argue that it was a false move for conservatives to grasp upon the theory of originalism or textualism as it was sometimes known, and that’s where I want to center some of our conversation today. Let me just say up front, I’m proud to be a recipient of the Edwin Meese Award for Originalism.
Hadley Arkes:
Ed Meese is a great friend of mine.
Albert Mohler:
And a great man, yes.
Hadley Arkes:
And a great teacher.
Albert Mohler:
But I’m also a theologian, so I operate on the basis of a prior ontology before I get to how to read a text. But your critique in this book, in fact, the subtitle is Originalism and the Anchoring Truths of the Constitution, you actually point to one of the problems of conservative thought in especially the last half of the 20th century, and that was trying to argue that we can anchor conservative principles in an original meaning of the text, not with reference to anything and, in fact, foregoing reference to anything behind it.
In other words, foregoing claims of enduring moral and, I would say, ontological truth and instead arguing that this is a proper means of interpretation. So just to cut to the quick, I’m going to argue that they’re not wrong on the question of interpretation. They’re wrong on the question of whether or not there must be ontological truth behind it.
Hadley Arkes:
Well, as an old colleague and I used to say, we’re in heated agreement. I had a satisfying and gratifying career teaching the American founding. If you want to understand what the Constitution is about, the best place to look are those remarkable men who gave us the most luminous account. The mistake in originalism is that people have detached the Constitution from the moral ground and those principles that the founders were drawing upon before they made the Constitution.
They realized they’d have to appeal outside the text quite often in order to explain how this text bears on cases before them. So we get this curious notion. People are so reacting to the Warren Court and the invention of new rights and abortion, for example, but they didn’t want to touch the moral ground of it. They’d simply say, “The crime was that abortion is not mentioned in the Constitution.” Therefore, a federal judge didn’t have any ground of which to articulate rights to amending the Constitution.
Well, marriage wasn’t mentioned in the Constitution when the court struck down those laws. That is not the point. As Jerry Bradley pointed out, the federal government had ample reason to be dealing with abortion before Roe v. Wade. They’d have to deal with abortion in military outposts, diplomatic outposts, the territories, District of Columbia.
Their mistake was in Roe v. Wade, those lawyers from Texas brought in an exquisite brief drawing on the most updated findings of embryology to point out that offspring in the womb has never been anything but human from its first moment. It has never been really a part of the mother’s body.
Albert Mohler:
That’s right.
Hadley Arkes:
The problem with abortion, it’s not because abortion was not in the text, but it was the most indefensible and implausible reasoning to say that we know nothing about the state of that offspring in the womb, that after all these years of embryology, we know nothing. It’s simply a value judgment to be put out there. It was a substantive mistake. That’s the difference with that.
They say, “Okay, you’ve cured the problem. You simply say it’s not in the Constitution.” But we see Roe v. Wade did not merely establish a right to abortion. It changed the culture. It converted abortion from being something abhorrent, discouraged, forbidden, into something approved, encouraged, celebrated, promoted.
Albert Mohler:
Right. With the support of the state.
Hadley Arkes:
Yeah. Some of our friends would think, “You see, we slew that white whale.” But we didn’t do anything to touch the very moral ground, the moral teaching of that decision so that the current majority would not even get itself to state that that offspring of the womb is, indeed, a human being with the claims to protection of the law. That would have made a profound difference for the way in which that matter was sent back to the states, for the way it’s handled now.
Albert Mohler:
May I make an argument? I want to see how you respond to it.
Hadley Arkes:
Okay.
Albert Mohler:
Because you really don’t get into the politics so much, and I appreciate that’s not your project here. You’re dealing with the jurisprudence. I actually think that’s more important, but the politics is important in terms of getting—
Hadley Arkes:
I thought I did have it in there. I thought it was the subtext running through the pages.
Albert Mohler:
No, it is the subtext. I want to bring it to the text for a moment.
Hadley Arkes:
Okay, go ahead.
Albert Mohler:
So let me make two arguments, if I may. Number one, conservatives in the 1970s, in particular, and into the ’80s, came to a couple of conclusions. One was that the law schools were primarily given to this formalism and basically an understanding of the law that was, you might say, at very best, merely based in pragmatism, at worst, based in liberationist theory.
So they were looking for some conservative argument, and there really wasn’t one in the law schools. There just really wasn’t much of an argument.
Hadley Arkes:
It’s true. It’s true.
Albert Mohler:
So they had to invent what they saw as a conservative argument. The second thing is they were very offended by what they saw. I think this is not wrong. They were right when they said, “Well, okay, where did the court go off the rails?” An they weren’t wrong that the court went off the rails in, again, assuming this kind of evolving Constitution or living Constitution, kind of Hegelianism brought into constitutional interpretation. They weren’t wrong that that was wrong.
They also weren’t wrong that in the 1950s the Supreme Court was bringing in information outside of the proper domain of the law and using it in making their decisions, sociology, for instance, criminology, any number of other disciplines. So originalism was an effort to try to create a conservative argument where there had not been one. I’m with you to say I think it was really important, but it’s not enough because when it denied a moral meaning prior to the law, it basically cut itself off from a far more lasting and objectively true claim.
But I do want to say it’s understandable in intellectual history that originalism has had such a dramatic effect upon the Supreme Court.
Hadley Arkes:
But you remind me of something else. There was a conservative jurisprudence on the court. It’s a jurisprudence of natural rights.
Albert Mohler:
But it wasn’t present on the court at that time.
Hadley Arkes:
It wasn’t what?
Albert Mohler:
It was not represented on the Supreme Court at that time.
Hadley Arkes:
Oh, yes, it was. I did a book about George Sutherland.
Albert Mohler:
About who?
Hadley Arkes:
George Sutherland. Justice Sutherland.
Albert Mohler:
Yes. No, I mean in the 1950s. Excuse me.
Hadley Arkes:
Okay. But the point is what happened? What happened along the way was progressivism.
Albert Mohler:
Absolutely.
Hadley Arkes:
The court talked themselves into the notion that striking down the minimum wage for women, a brilliant, compelling case or the Lockton case with men work extra hours in the bakery, they struck them down. Now the conservative judges have come behind and say, “No, we’re not backward reactionaries like those natural rights justices. Yes, you could use the law for the sake of … Yeah, we might not agree with it.”
As Scalia would say, “Minimum wage laws are just a wacky idea.” But there’s nothing unconstitutional about them. So they’re beginning to sign on and accept all the scheme, the scheme of the new deal. As you say, by the time we got to Brown v. Board and the seriousness of segregation … We used to raise the question, if you separate the kids in the basis of race and the reading scores go up, does the segregation cease to be wrong, or is it wrong in principle?
Albert Mohler:
You mean because of the kind of argument they used, the argument that was merely in terms of sociological effect. You’re saying it should have been a moral judgment?
Hadley Arkes:
They offered the Kenneth Clark’s dolls about children rejecting their Blackness, and so the problem was that the Blackness was rejected more often in the integrated settings rather than segregated settings. So first they tell you, “We don’t know what the principle is.” We know there’s nothing in the text about this because we know that Congress had passed that 14th Amendment did not interfere with racially segregated schools in the District of Columbia.
It’s hard to believe that they didn’t think the 14th Amendment could reach the schools of DC, but somehow it reached the schools of Topeka. So it’s not in the text. It’s not in the understanding of the framers. We’re not going to make an argument on principle. We’re simply going to cite the social science. But when the social science comes out the wrong way, we said, “We’ll tell you what it means.”
Albert Mohler:
We see that right now in terms of the LGBTQ issues. We see the very same thing.
Hadley Arkes:
Absolutely. As though absolutely detached from any serious consultation to the evidence, it becomes some kind of a, like the whole homosexual-itis, how does this become an orthodoxy that you couldn’t simply raise a question about it? How is this justified? Why can’t I express an aversion to it? What’s wrong with it? Yeah, you’re right. But, you see, this is the conservatives got them into this themselves. As you say, the natural law was being rejected on both sides.
The conservatives thought we’re just being a little more sophisticated and urbane and dealing with the law as we’re finding that law is going to be used by majorities to try all kinds of progressive means, rent control, price controls, sterilization by—
Albert Mohler:
Justice Holmes.
Hadley Arkes:
You take a look back in when they struck down the Skinner v. Oklahoma on sterilization. They still wanted the good liberals not challenging the authority of the majority, so they didn’t want to dislodge Holmes and Buck v. Bell. They wanted to keep as much as possible the right of majorities to do all kinds of unseemly things.
Albert Mohler:
Morally wrong things. Yes.
Hadley Arkes:
Hmm?
Albert Mohler:
Morally wrong things.
Hadley Arkes:
Yeah. They didn’t want to make that judgment. Remember Scalia said in the marriage cases, “I don’t want to discuss marriage itself.” He has no substantive argument to offer in defense. My concern is that the American people should not be ruled by five judges. It was wholly a matter of procedure and the fact that it wasn’t in the Constitution. You couldn’t find same sex marriage there. But it was not rising to a defense of marriage as we know it. That has been the move of the conservatives in our time.
Ed Meese is a terrific guy. He knows the differences we have on this one, but he’s a very wise man. Ed’s judgments are right almost all the time, I think.
Albert Mohler:
Well, when we speak about people like Edwin Meese—the attorney general played a pivotal role in American history, by the way, because I think a lot of conservatives fail to recognize it took someone inside the Reagan administration to weave these things together in an argument that would be persuasive to Ronald Reagan and also to a majority of Republicans in the United States Senate, especially on the committee on the judiciary in order to make headway here.
He was not a man merely who was a political operative. He was a man of ideas. Then I have tremendous admiration for someone who was your dear friend, and that is the late Justice Antonin Scalia, and you’ve mentioned him.
Hadley Arkes:
Yeah, I know. He was very dear to me, yes.
Albert Mohler:
I would frame the argument a bit differently because I’m in a different place, but I would simply say that originalism is necessary but not enough. It is necessary but not sufficient. Taken by itself, if originalism is all you’ve got, then all you have at the very most is some kind of delay in the inevitable progress of moral dissolution.
All it does is perhaps slow down an engine of ideological progressivism because it just replaces ideologically progressive arguments with slower arguments. So it’s not enough, and I appreciate the fact that you take it on. How has that played out in your academic life? In other words, where is the movement for what you’re calling for in your most recent book, Mere Natural Law?
I think, by the way, you’re talking to someone who’s a part of that movement. But nonetheless, where do you find it?
Hadley Arkes:
Amazing thing was I was invited to start this project 11 years ago by Tom Klingenstein when he was president of Claremont. He said, “I want you to change the legal culture.” I have a conservative view on the difficulty of doing something like that. But the remarkable thing, Al, is that the people who’ve been coming over to our side are young lawyers, judges. People are beginning to sense something is awry.
You see the Bostock case on transgenderism. Something is missing. As Chris DeMuth said in a commentary in my books, “There’s something quite not right about a morally agnostic Constitution.” Look, one thing about the Constitution is that you could put it this way, to be guided by the Constitution is to bet I’d rather be ruled by James Madison, Alexander Hamilton, and John Marshall, then by Harry Blackmun, Neil Gorsuch. We have more confidence in the minds that put that in place. So that’s the argument you have to beat.
If the Constitution talks about capital punishment, they always assume it’s there, then you need a strong argument to explain what is wrong with it. We start with a high respect, and they have reasons for what they were doing. All those provisions are important. I do want to know whether, not structure, foreign power can use a state as a naval military base. These are structural matters. I’ve got to know. These are important. These are not what we’re litigating about though.
So the real problem again was we esteem the Constitution. What we pride ourselves on in this project, Al, is that we want to recover the reasoning used by the judges instead of remembering the box score. People remember the box score. They don’t remember the kinds of reasons that kept it. By the way, in this vein though, in our project in the summer, we have these accomplished young lawyers with newly minted degrees on their way to clerkships.
A couple of years ago, we had a first, a young woman who had clerked on the Supreme Court for John Roberts, an old friend of mine. I said, “My God, why are you here?” She said, “I want to get what I couldn’t get at Harvard.” Much to my surprise, Al, that is setting in. We’re hearing more and more. We give this opening to the new class on Aristotle politics and the way on which Lincoln and the debate with Douglas really helped explain the moral argument in the politics.
I’m certain we do this, “Look, I’m sure this is just a refresher for you guys.” Turns out, no, it wasn’t a refresher. They never heard it before either in college or in law school.
Albert Mohler:
No. No.
Hadley Arkes:
So these are the signs, I think, we are recruiting some support for this, with my hopes.
Albert Mohler:
Well, I will say I’m the president of an academic institution with graduate and undergraduate programs, and I’ll tell you, if you’re looking for pushback against the modern liberal culture, look to these young people because they’re coming by the thousands, and they know exactly what they’re coming for and what they expect.
Hadley Arkes:
You. You. The people you are seeing.
Albert Mohler:
Yes, exactly.
Hadley Arkes:
I don’t think those are the people at my former college where I spent 50 years because that book, First Things, that came out of a course called Political Obligations. I could not give that course again at Amherst College.
Albert Mohler:
So what would happen if you did?
Hadley Arkes:
There’d be complaints right away that women feel unsafe in it. It just runs counter to the deepest orthodoxies of this, you possibly call into question the right of a woman to order up an abortion. It’s just flagrantly out of line with everything we’re doing here. It’s despicable, and it makes people feel unsafe. Now, people in the past used to come into the course thinking, “Ah, there’s an argument here. Can I break the argument? Can I test the argument?”
They carried the argument into the dormitories, and they argued at the dining halls and in the dormitories and people would say, “Oh, you were in this course last year. Do you know the argument?” “Yeah.” So you realized a lot of people teaching for me then. That couldn’t possibly happen. That’s gone.
Albert Mohler:
Right. Well, and that’s why we have such a deep divide in this country. It’s a divide in academia, and it’s growing wider by the day. I want to come back for a moment to say, let’s go to Obergefell rather than Bostock.
Hadley Arkes:
Oh, okay. Right.
Albert Mohler:
Yeah. Okay. So Antonin Scalia’s dissent is, I would argue, an absolutely brilliant display of literary and logical skill. It’s a devastating argument. The problem is he never says anything ontological about marriage.
Hadley Arkes:
Of course.
Albert Mohler:
In other words, there is no one so incisive as was he in pointing out the errors in the progressivist argument. The problem is that the Supreme Court, even on the conservative side, has tried its very best not to say what marriage is. Now, I’m headed somewhere here. I want to test a theory with you, and that is that L and G and B and T are not equally products or sources of disequilibrium. I think the T is unique.
So it’s one thing if the court doesn’t know what marriage is. It’s another thing if the court doesn’t know who a boy and who a girl is.
Hadley Arkes:
It’s part of the same scheme though. It’s just the scheme working itself out. It’s utter detachment from the truths of nature.
Albert Mohler:
Oh, absolutely. But this is not going to work. It’s not going to work. I traced this even in an article that appeared in The Wall Street Journal yesterday. It can’t keep the language straight. So over here it basically wants to say whoever—this was about a controversy having to do with the Bud Light transgender controversy—
Hadley Arkes:
I didn’t see that piece. In the Journal yesterday?
Albert Mohler:
Oh yeah, yeah.
Hadley Arkes:
That’s your piece?
Albert Mohler:
No, no, no. It’s a piece I’m critiquing in this case. No, no, no.
Hadley Arkes:
Okay, yeah.
Albert Mohler:
It’s a piece I’m critiquing. It was an investigative report. It began on the front page in the print edition. It’s arguing and, clearly, it’s trying to keep the transgender language, but it gets to who the average buyer of—I can’t believe this: On Thinking in Public, you got a Southern Baptist talking about Bud Light, but that’s the controversy of the day—so this says the average consumer is a male. Well, you just said you didn’t know who a male was, but now if you’re trying to sell this product, you do know who a male is. You can’t keep coherence here.
Hadley Arkes:
If you’re trying to talk about going from male to female, you have to assume those coordinates must be in place. Look, as David Crawford and Margaret McCarthy point out, it’s a new metaphysic. What does the youngster learn when he’s told his father could be a woman, his mother could be a guy, his sister could be a guy? How does he not be so impelled to think, “What am I? What am I now?”
Albert Mohler:
How do I know?
Hadley Arkes:
The thing with Scalia, by the way, I was in the courtroom that day, and I was sitting with Mrs. Scalia when Nino read that opinion. When we walked out, I said to her, “You know, Maureen, if Nino hadn’t read that opinion, we couldn’t be walking upright out of this room right now. It had to be said.” But at the same time, you see, it was never an argument about what must marriage be, what is there about the capacity of moral creatures to make a commitment that conveys they’re foregoing. I think freedom to leave one another and the children as it suits their convenience, and the children begotten from that union represent the one-flesh human institution instantiated.
I remember seeing years ago, my younger son, Jeremy, on a swing in Georgetown, and I suddenly saw reflections of my mother’s parents that he never could know. I said, “My God, he is really the marker of the love that existed a long time ago.” You just have to pass by everything that is so precious and powerful in the natural understanding. It’s part of our nature, too, that it’s a commitment confirmed by love because we are the one creatures who can say that. It’s an interesting thing. I get different reactions these days.
Some of my students would say, “Oh, this matter of sexual attraction, it’s just wholly subjective.” And I’d say, “All right, let’s try it this way. I married her for her exquisite blah-ness. She went perfectly with the drapes in my apartment. But now I’m doing the whole place over in art deco. Don’t you see?” It used to elicit giggles. But the point is, you see, that’s trivializing marriage. What part is it missing?
This is the fact you’re joined to this spouse because you see something so admirable about their character, something so admirable, morally important that it’s not going to wither with age, see? You’re missing that component of it. It’s just how people just flip past all these things as though it didn’t make a dent.
Albert Mohler:
Well, yes. By the way, I was in a conversation just recently with the official biographer, well, I should say most recent biographer with access, of Antonin Scalia, and he says—
Hadley Arkes:
James Rosen. James Rosen. He’s quite terrific.
Albert Mohler:
Yeah. We just had a conversation and, in it, he says that it was Mrs. Scalia who convinced or argued with Justice Scalia that he must read that dissent aloud. So if true, I’m thankful to her for that.
Hadley Arkes:
Yeah, yeah, I think that’s true. I think Maureen told him that, “You really should read it aloud.” She was right. Yeah.
Albert Mohler:
It was an act of bravery. We’re summoned to a lot of acts of bravery these days, I mean just to assert natural law. So now I want to turn this just a little bit and say, so here’s another irony. I am speaking to a famous convert to Roman Catholicism, and I am a confessional Protestant, even a Southern Baptist, and we’re having a conversation about the natural law.
You understand the irony in that? Because there’d be a lot of people who would say, “What in the world do these two men have to talk about when it comes to natural law?” But that is to misunderstand both the nature of the natural law and, I would argue, the claims relative to the Roman Catholic Church and to Protestantism. So I’m just arguing that there really is a great deal of common ground, but there is also a great deal of difference in how a Protestant and a Roman Catholic would talk about the natural law. So let’s talk about both.
Hadley Arkes:
Okay, Well, first of all, it’s what did Paul say in Romans? “Those Gentiles who have not the law, when they do by nature the things of the law, they are a law for themselves.”
Albert Mohler:
Absolutely.
Hadley Arkes:
Aquinas said, “The divine law we know through revelation, but the natural law we know through that reasoning that is accessible to human beings as human beings.” Actually, I was just looking through Augustine the other day, Book 19. He said, “It may be easier to explain this to you if I don’t appeal to faith, but use that reasoning that everyone understands.” John Paul II said, “When St. Paul went out to Athens, he thought he had to use the language that other people would understand.”
So put the Catholic position on abortion example, it’s simply principle reasoning combined with embryology. So they say you don’t need to be Catholic to understand this. That’s been the position. So when Bishop Lori made his argument against Obamacare, he wasn’t asking for an exemption for Catholics. He said, “This is a wrong law.” I’m not quite sure I’ve mastered what all the discomfort is among my Protestant friends because they say, “Well, where does this all come from?” We know where it comes from.
We know we get creatures of reason who came from the Creator who endowed us with the Word and with reason. Of course, and the whole thing comes along with … You help me here, too, Al. You’ll fill in for me. Why does this biped who conjugates verbs, `why he’s a bearer of rights? Lincoln would say, “No one made in the graven image was sent into this world to be bruted.” That line you’ve heard me use in critique of my friends at Amherst that time when I was doing that piece on the Holocaust Museum for Natural Review.
I took the turn and found a vast vat filled with shoes and things the Nazis thought they could use again. What came back were Justice McLean’s searing lines in the Dred Scott case, “You may think that Black man is chattel, but he’s a creature made in the impress of his Maker. He’s amenable to the laws of God and man, and he is destined to an endless existence. He has a soul that will not be composed.” I say you get the measure of the situation and realize the Nazis looked at the scene, they thought the shoes were the durable.
Albert Mohler:
Yes. That’s such an important point.
Hadley Arkes:
So I daresay my colleagues in the academy, we have people of large liberal space, but they have to realize they can’t give the same account of the wrong of genocide and slavery that we can give out of our religious tradition. So yeah, we can do this for reason, but at the same time we know you can’t do this all with the syllogism. Something else must be in place. So after that, I’m ready to be tutored, as we say, about where my Protestant friends have their difficulty with it.
Albert Mohler:
Well, first of all, there’s a long history here and longer than most Protestants recognize. So if I go back to the 16th century with the magisterial reformers, Luther and Calvin, neither of them denied the natural law. Both of them affirmed it. With Luther, it was creation order or the orders of creation, to use his exact term translated, the orders of creation. For Calvin, it was God’s revelation in nature of things that are knowable to all based simply upon the Imago Dei inferences drawn.
Hadley Arkes:
They’re durable. They’re durable.
Albert Mohler:
Again, it’s very similar to Luther in creation order. But for Calvin, it was more systematized. Where the reformers differed from the Catholic church in the 16th century and, even more emphatically, the heirs of both because in the post-Reformation era, they’re defining themselves against one another, is in the know-ability of these things. That’s where the reformers and the Protestants will come back and say, “The problem is, as Paul makes clear in Romans 1, that the sinner simply will not acknowledge it is there. Will simply, instead, corrupts that which is there and lives by a lie. Exchanges the truth of God for a lie.”
Now, that’s not absolutely extensive. So, in other words, Calvin and Luther would not say, “Therefore, we don’t know what marriage is,” but they would say, “We actually need the special revelation of God in scripture to make clear how the church is to order marriage.” Both of them would have said, “There’s plenty in nature to tell the magistrate how to order marriage.” The Catholic notion of concupiscence is just rejected by Protestants. I’m very much a Protestant. You figured that out.
But what is happening right now among especially younger evangelicals, younger conservative thinkers, is a new realization of the fact that many arguments from the natural law, let’s put it this way, ought to be at least very helpful to the church in understanding how to address these issues and understand them more deeply. Less confident are Protestants in how compelling these arguments will be in the larger culture.
Hadley Arkes:
Well, see, I thought part of the concern of the past was that people are fearful thinking you could learn this simply by reading from the text instead of being guided by the Bible. That could be it. First of all, the fact that you can find some places where the natives don’t recognize the law of contradiction doesn’t give us grounds to doubt the law of contradiction. We’re dealing with strange people. Of course, there will be sinners. The guy thinks he’s made of glass. There’s nothing you’re going to do with him.
With sinners, we find other ways of loving the sinners without saying, “No, we can’t use that as a way of dissolving what we know.” Actually, an interesting character is Jean-Jacques Burlamaqui, who was read by James Wilson who was a Huguenot Protestant, and he said, “People say there are two sources of law. One, it emanates from the law giver. The second, it’s accord with reason.” Then he said, “Our confidence that it emanates from a law giver is strengthened when we see that it’s an accord with reason.”
So the example I always use, you have the biblical injunction, honor thy father and thy mother. I said, “But it can’t be referring simply to the biological father because, in that case, we’d be enjoined to honor the man who sired us in the course of a rape. There must be a moral framework there. It must be referring to the father who fulfilled the moral definitions of parenting, the one who’s there to protect and nourish.”
My sense is that so many places we’re assuming in the Bible, the moral reasoning is there, We may forget that it’s all tucked away in our soul. It’s always there for us to be used. I used to tell somebody, “If Moses came down from the mountain and said, ‘The Lord our God told us don’t worry overly much about lying down with somebody else’s wife or taking what is not yours,’ my hunch is the Hebrews gathered around would start scratching their heads and say, ‘Are you sure you got that one right?'”
Albert Mohler:
Well, there is a reason why so many young evangelicals are walking around with copies of Mere Natural Law.
Hadley Arkes:
Are they really? Are they really?
Albert Mohler:
They are. They are. I mean to encourage you. But it is because, well, let me put it this way, put it negatively first. It’s not because of a new confidence in human reason out there in the larger polis. It is, instead, an understanding of the fact that Protestantism has often built arguments that do not follow through in terms of application and, frankly, were insufficiently grounded in ontology. I guess that’s the bigger issue, just weren’t grounded in claims of an ontological status.
Now, again, I’m just going to argue, the T in LGBT is the culminating catalyst to require an awful lot of evangelicals to say, “Well, okay, guess what? We’re going to talk ontology. If we’re talking ontology, we’re talking certain categories, and those are categories that are ordered by reason.” But the reason is we have to go further and say any rational creature, that means human, in any member of homo sapiens is accountable to this, cannot not know this. So that’s a new argument found among evangelical Protestants.
Hadley Arkes:
Really? Really?
Albert Mohler:
Yes.
Hadley Arkes:
I thought that ontology is always taken for granted for we’ve got to know what is.
Albert Mohler:
Well, take it for granted is the problem. You can take it for granted when the world around you commonly takes it for granted. But when the world around you is at war with it, you can’t take it for granted anymore.
Hadley Arkes:
That’s charming. That’s charming. I guess you’re right. This is where people are shaking and people saying, “I thought I was liberal. I’m not that far left.” They see something that goes beyond anything. But then they’re trying to understand why they’re justified in holding those. “You mean the really obvious truths? Like what? How do I know them?” So it becomes the opening. It becomes the opening for us. In my mind, I think in the book, it’s like Plato’s Minos when Socrates is feeding this young boy these questions. Step by step, he’s working out geometry.
He says, “It’s unlocked within us, and it’s just a matter of the questions that bring them out.” I think that so much of that is true, Al, that you raise these questions. Why aren’t you signing labor contracts with dogs and horses? The ordinary man realizes. He grasps, but he doesn’t realize he knows. I used to say, “The ordinary man knows it’s not always wrong to take an alcoholic drink. It depends on matters of degree, access.”
The same man will not turn around and say, “Genocide, if taking in moderation in small doses.” He doesn’t talk about things contingently right or wrong, but he has a sense of certain wrongs that will not be effaced by matters of degree. I’m counting, as you are, on a natural understanding, which is why we think outside of the theory classes among ordinary people, we could find our constituents here.
But apparently, you’ve done better than that for your account. You’ve got students with you who really just end with a concern about what is there, what really is anchoring everything.
Albert Mohler:
Absolutely. They have been forced into that position by circumstances, and I think the moral disequilibrium of the age has required them. I mean, frankly, if you’re going to be 20 years old and you are not going to live by the code of student sexual conduct at Duke, but you’re going to hold to a far more restrictive biblical conception, you’ve got to have an argument.
You’ve got to have an argument not just based in theory, but based in the fact you actually believe there is one sovereign Creator, just and righteous God who created us in His image and not only has commanded us with law, but has also commanded our telos. That’s something else you just haven’t heard much from evangelicals is teleology, and teleology is the other side of the ontology.
Hadley Arkes:
I think we’re going to need some kind of great awakening to get … Let me take a riveting passage from your book that I think was at least … You talk about homeschooling in Britain. Start raising the question now. Are you homeschooling in such a way that you’re fostering homophobia? You realize they’re after us. Once this stuff has acquired the fact that they cannot be questioned, they’re going to obliterate any possibility of having access to arguments against it. It’s overwhelming.
I said, “Where is the ground of resistance to all of this?” It’s so massive, the woke corporations, as you point out, the media all around us. I think we need a great awakening, maybe a great awakening to get us back. But still, it’s going to have to start with something. Maybe it starts, as you say, where people are just shocked by this. It’s so implausible. It’s so shocking based on what is true.
But then look what’s happening to colleges as people have obliterated for students any concern about what is true. It’s your truth. It’s the truth that works. We could live very happy lives by going along with this ethics that have been established over here.
Albert Mohler:
But, Professor, they can’t live with that. They say, “Everyone has this truth. She has hers. You have yours.” But increasingly, only this one’s acceptable.
Hadley Arkes:
Of course.
Albert Mohler:
Nothing else can even be articulated on the campus.
Hadley Arkes:
That’s why you may be the leader of the revolution, Al. What you’re doing there is where we build … We can’t do it anymore at schools like Amherst or the other schools in the East. It’s—
Albert Mohler:
But you can do it through some think tanks and intellectual agencies—
Hadley Arkes:
True, but—
Albert Mohler:
—such as what you’re doing with lawyers.
Hadley Arkes:
Yeah, but we need colleges. We do it with some Christian colleges who can do … The real intellectual honesty and diversity comes in the Christian colleges. They’re not unhinged by dealing with people who are at odds with them. They’re not astonished by fallen creatures and so on, and they could live with it. Right now, they’re the best resource we have, unless if they can keep them, unless there’s a move to strangle these colleges by schools of thought and accreditation unless you’re going to pay provisions for medical insurance for same-sex couples and everything else like that,” and find other ways of making life hard for you.
Albert Mohler:
Yes. Well, we have tried to reduce the ways they can make life hard for us by, for instance, not being involved in any form of government-supported financial aid. There’s no tax dependency here.
Hadley Arkes:
That’s great. That’s great.
Albert Mohler:
That’s a start. As you say, through accreditors and through state regulators and the administrative state, they’re going to try to find ways to come at us. As you know, they can come at us through third parties. They can just make it such that insurers don’t want to insure us and contractors don’t want to build for us.
But where do you place this? Just finally here, and I want to continue this conversation and hope to do so in person. But where do you place this right now in a timeline of history. I’m not asking you to be a prophet, but we’re already seeing, at least intellectually, how the left’s arguments are taking shape. What are we going to be talking about the next time we talk?
Hadley Arkes:
Well, it struck me this morning that suddenly we are waking up into a dystopian novel. I mean I see businesses closing in Washington because signs up that the crime is too much. We find flash mobs going and destroying businesses in Chicago on Michigan Boulevard and the notion that the law cannot be enforced. Under a scheme of racism, we’ve created a situation where Black kids don’t get prosecuted and things like this.
It’s going to render life here in Washington, DC, really notably unsafe, and I wonder where people are going to go. They’re going to have to find enclaves in Louisville and Kentucky, in Florida and the country. I never thought I’d wake up in a country where a legislature could forbid parents from seeking counsel for a youngster who’s undergoing confusion about his sexuality. I never thought I’d live in a country like that. I said, “Where did this come from, and what is it going to take to start chipping away at it, to start breaking away, for starting to call into question?”
There was a great cartoon in The New Yorker years ago. Two guys strapped to the wall. One turns to the other and says, “I’ve got a plan.” And I thought, “That’s our people. That’s our people.”
Albert Mohler:
That’s right.
Hadley Arkes:
There’s got to be a plan.
Albert Mohler:
Well, Professor Arkes, I have to tell you this conversation has been a tremendous privilege, and I do look forward to continuing it. I’ve had a—
Hadley Arkes:
Come to DC and spend some time with me over here, Al.
Albert Mohler:
I would very much like to be there. I have a daughter and son-in-law and three grandchildren in Washington, so that makes it an instant draw.
Hadley Arkes:
So we’ll have to do it again. Wow. I’ll have to take a run to Louisville. I’ve got to run down there at some time.
Albert Mohler:
We’re going to arrange that as soon as we can.
Professor Hadley Arkes, thank you for joining me for Thinking in Public.
Hadley Arkes:
Reverend Mohler, it’s just an honor to be with you, Al. Thanks so much for inviting me here. Bless you.
Albert Mohler:
Absolutely.
Many thanks to my guest, Hadley Arkes, for thinking with me today.
If you enjoyed today’s episode of Thinking in Public, you can find more than 180 of these conversations at albertmohler.com under the tab, Thinking In Public. For more information on The Southern Baptist Theological Seminary, go to spts.edu. For Information on Boyce College, just go to boycecollege.com.
Thank you for joining me for Thinking in Public.
And, until next time, keep thinking.