At times, the dialogue between my friend Hadley Arkes and the constitutional originalists he most admires—eminent jurists such as Robert Bork and Antonin Scalia—seems less like a difference of opinion than a case of ships passing in the night. What it needs is for someone to drop an anchor. This is what Professor Arkes undertakes to do in Constitutional Illusions and Anchoring Truths, the latest of his several books, and one that brings to bear his full arsenal of erudition, piercing insight, razor wit, and good cheer.
Arkes is the Edward Ney Professor of American Institutions and Jurisprudence at Amherst College. His passion is that first of first things, the natural law. In a manner of speaking—a very fundamental manner—this makes Arkes a constitutional originalist because, as he powerfully demonstrates, the American Framers were steeped in natural law. Never did they lose sight of the fact that, to paraphrase Chief Justice John Marshall’s often invoked (and often abused) maxim, it was a Constitution they were sculpting.
The injunctions crafted by the Framers were not to be exacting regulations prescribing minimum wages, maximum labor hours, or a robust system of wealth transfers flying under the beguiling flag of “entitlements.” They were, instead, the foundation for the continued flourishing of a pre-existing free society. Their purpose was to secure liberty—without defining the manifold aspects of liberty—against the insatiable appetite of government to encroach. Arkes quotes Hamilton in Federalist31: “In disquisitions of every kind, there are certain primary
