This book stands against the current of judgments long settled in the schools of law in regard to classic cases such as Lochner v. New York, Near v. Minnesota, the Pentagon Papers case, and Bob Jones University v. United States. Professor Hadley Arkes takes as his subject concepts long regarded as familiar, settled principles in our law - "prior restraints," ex post facto laws - and he shows that there is actually a mystery about them, that their meaning is not as settled or clear as we have long supposed. Those mysteries have often given rise to illusions or at least a series of puzzles in our law. They have at times acted as a lens through which we view the landscape of the law. We often see what the lens has made us used to seeing, instead of seeing what is actually there. Arkes tries to show, in this text, that the logic of the natural law provides the key to this chain of puzzles.
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Editorial Reviews
Review
"Who but Hadley Arkes could produce a page-turner on classic constitutional cases? Constitutional Illusions and Anchoring Truths is just that-an intellectually thrilling hunt for truths about man, nature and government encoded in decisions so familiar that we have lost awareness of their deepest meanings."
-Mary Ann Glendon, Harvard University Law School
"With a rare combination of rigor and wit, Professor Arkes sheds new light on the principles animating Supreme Court cases long thought familiar. His penetrating analysis is a welcome challenge to understandings too often taken for granted in the academy and in the courts. This thought-provoking book will captivate anyone concerned about the legal and moral framework of our constitutional system."
-Diarmuid F. O'Scannlain, United States Circuit Judge for the Ninth Circuit
"For over a generation, Hadley Arkes has been America's most articulate and cogent defender of the limited, but important and indispensable, role of moral reasoning in constitutional adjudication. Constitutional Illusions is his best book yet, a fitting capstone to a most distinguished career. In this new work, Arkes explores with characteristic subtlety such leading Supreme Court cases as Lochner v. New York, Near v. Minnesota, and The Pentagon Papers Case. In each instance, he uncovers the scarcely acknowledged moral structure of the Court's decision, and subjects it to a critical analysis. But the main concern of Illusions is a characteristic feature of today's judicial conservatism, which Arkes rightly attributes to Justice Scalia and Robbert Bork: that constitutional interpretation must steer clear of natural law, or unrestricted moral reasoning. Arkes argues forcefully that natural law has more to do with judicial review than these and other conservatives allow, though still less than most liberals claim that it does."
-Gerard V. Bradley, University of Notre Dame Law School
"With considerable wit and charm, Constitutional Illusions and Anchoring Truths seeks to challenge conventional wisdom as it invites the reader to puzzle anew about old constitutional questions. In his urbane manner, Hadley Arkes may be among the most gifted prose stylists writing today."
-George Thomas, Claremont McKenna College
"Hadley Arkes's Constitutional Illusions and Anchoring Truths clearly illustrates the value, famously emphasized by John Stuart Mill, of attending to important, carefully-considered-if also unconventional, unsettling, or contrarian-arguments. Professor Arkes remains one of the law's most gifted and rewarding prose stylists."
-R. George Wright, Indiana University School of Law, Indianapolis
"Hadley Arkes is a well-known scholar, a superb stylist, and perpetual gadfly disturbing the peace of scholars on both the right and the left. Constitutional Illusions and Anchoring Truths continues his project of elaborating a 'natural law' approach to jurisprudence, which argues that implicit in widely-accepted forms of legal reasoning is a commitment to certain principles of reason that transcend the text itself. He develops his argument through discussions of ex post facto laws, the Eleventh Amendment, substantive due process, prior restraint, and the Bob Jones case, and nothing indicates Arkes's skill as a writer and thinker better than his ability to find novel and fascinating perspectives on cases talked about endlessly by others. Constantly thought-provoking, chock-full of original insights, and elegantly written, this book is a powerful reminder to everyone that written law cannot be interpreted without reference to the fundamental moral understandings within which it is embedded."
-Christopher Wolfe, Marquette University
"In his extraordinary book, Arkes's powerful intellect, wit, encyclopedic knowledge, and grace are all on full display as he takes us through a number of landmark cases that we thought we knew - cases whose meaning, we thought, was firmly settled - only to have him show us that we do not know them as we thought we did. He shows us what a difference it makes if we read these cases with more attentiveness to their reasoning and a clearer sense of the logical properties of their propositions. In short, he shows us by his example how we, too, can be freed from the tyranny of understanding landmark cases through the eyes of others."
-Ralph Rossum, Claremont McKenna College
Arkes is a witty and elegant writer, more so than many other philosophers who have addressed these issues..."
-Timothy Sandefur, California Lawyer
-Mary Ann Glendon, Harvard University Law School
"With a rare combination of rigor and wit, Professor Arkes sheds new light on the principles animating Supreme Court cases long thought familiar. His penetrating analysis is a welcome challenge to understandings too often taken for granted in the academy and in the courts. This thought-provoking book will captivate anyone concerned about the legal and moral framework of our constitutional system."
-Diarmuid F. O'Scannlain, United States Circuit Judge for the Ninth Circuit
"For over a generation, Hadley Arkes has been America's most articulate and cogent defender of the limited, but important and indispensable, role of moral reasoning in constitutional adjudication. Constitutional Illusions is his best book yet, a fitting capstone to a most distinguished career. In this new work, Arkes explores with characteristic subtlety such leading Supreme Court cases as Lochner v. New York, Near v. Minnesota, and The Pentagon Papers Case. In each instance, he uncovers the scarcely acknowledged moral structure of the Court's decision, and subjects it to a critical analysis. But the main concern of Illusions is a characteristic feature of today's judicial conservatism, which Arkes rightly attributes to Justice Scalia and Robbert Bork: that constitutional interpretation must steer clear of natural law, or unrestricted moral reasoning. Arkes argues forcefully that natural law has more to do with judicial review than these and other conservatives allow, though still less than most liberals claim that it does."
-Gerard V. Bradley, University of Notre Dame Law School
"With considerable wit and charm, Constitutional Illusions and Anchoring Truths seeks to challenge conventional wisdom as it invites the reader to puzzle anew about old constitutional questions. In his urbane manner, Hadley Arkes may be among the most gifted prose stylists writing today."
-George Thomas, Claremont McKenna College
"Hadley Arkes's Constitutional Illusions and Anchoring Truths clearly illustrates the value, famously emphasized by John Stuart Mill, of attending to important, carefully-considered-if also unconventional, unsettling, or contrarian-arguments. Professor Arkes remains one of the law's most gifted and rewarding prose stylists."
-R. George Wright, Indiana University School of Law, Indianapolis
"Hadley Arkes is a well-known scholar, a superb stylist, and perpetual gadfly disturbing the peace of scholars on both the right and the left. Constitutional Illusions and Anchoring Truths continues his project of elaborating a 'natural law' approach to jurisprudence, which argues that implicit in widely-accepted forms of legal reasoning is a commitment to certain principles of reason that transcend the text itself. He develops his argument through discussions of ex post facto laws, the Eleventh Amendment, substantive due process, prior restraint, and the Bob Jones case, and nothing indicates Arkes's skill as a writer and thinker better than his ability to find novel and fascinating perspectives on cases talked about endlessly by others. Constantly thought-provoking, chock-full of original insights, and elegantly written, this book is a powerful reminder to everyone that written law cannot be interpreted without reference to the fundamental moral understandings within which it is embedded."
-Christopher Wolfe, Marquette University
"In his extraordinary book, Arkes's powerful intellect, wit, encyclopedic knowledge, and grace are all on full display as he takes us through a number of landmark cases that we thought we knew - cases whose meaning, we thought, was firmly settled - only to have him show us that we do not know them as we thought we did. He shows us what a difference it makes if we read these cases with more attentiveness to their reasoning and a clearer sense of the logical properties of their propositions. In short, he shows us by his example how we, too, can be freed from the tyranny of understanding landmark cases through the eyes of others."
-Ralph Rossum, Claremont McKenna College
Arkes is a witty and elegant writer, more so than many other philosophers who have addressed these issues..."
-Timothy Sandefur, California Lawyer
Book Description
Hadley Arkes reexamines legal cases and concepts long thought settled, such as "prior restraints" and ex post facto laws, finding that their meaning is far less clear than commonly accepted. He proposes that the logic of the natural law provides the key to solving the legal puzzles cast up by a series of mistakes woven into the law.
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Format:Paperback
I have been alighting on some of these "natural law manifestoes" , a phrase recently coined by Richard Garnett, and they are not very lovely flowers. The whole idea of these things is so forced and wrong, and this is just one more of the type I have made fun of and highlighted before. Aquinas is brought in for no discernible scholarly reason. Check out p. 61 of this book. It is astonishing to any fair minded person. These people are operating is some sort of alternate universe where coherence matters not. Simply put, it is a word salad. First the author cites "Aquinas and Lincoln" as if they somehow historically belonged together. But no matter he moves on to Burlamqui, as if quoting him would say something definitive about the age. That is like choosing to analyze the depths of Leibizian thought only by way of Christian Wolff. But no matter, he then slithers into a quote by Hooker, and all that in a few paragraphs. And then suddenly -- I am NOT making this up!!! -- he is suddenly back to the "Church Fathers" ! Huh?? What in the world. He then glosses on the Patristics. How is this word salad even an argument. This is just pure nonsense as an historical argument. And it is only published as purest polemics. But much more interesting is a recent comment by the author online, where he helpfully admits the shadowy nature of this sort of argumentaion in the light of our republic:
"I want to thank our readers for their comments. Mr. JSmitty touches on a sensitive matter, and it may interest him, as well as others among our readers, that we announced, on June 4th, the establishment of a new Center for Natural Law in Washington, D.C., under the Claremont Institute, with my own writings figuring in the curriculum. But we hope to draw together a number of federal judges, along with lawyers and professors who want to bring natural law out of the shadows and bring it forth with a sense of its practical and pressing importance. Our purpose would in fact be to offer an alternative to that positivism that has taken a dominant hold even among conservative--and Catholic--jurists in our own day. And so, to our friends in the Catholic Thing, I say "stay tuned."
Natural Law wants to come "out of the shadows" eh?. How interesting. In other words, this type of forced, ridiculous argumentation wants to come out of the shadowy world of bought-and-paid-for academic pseudo-scholarship and wants to be taken seriously. Good luck, fellas. If page 61 of this book is any indication you belong in the dark, shadowy gloom of reactionary swamps with a pile of Summas.
"I want to thank our readers for their comments. Mr. JSmitty touches on a sensitive matter, and it may interest him, as well as others among our readers, that we announced, on June 4th, the establishment of a new Center for Natural Law in Washington, D.C., under the Claremont Institute, with my own writings figuring in the curriculum. But we hope to draw together a number of federal judges, along with lawyers and professors who want to bring natural law out of the shadows and bring it forth with a sense of its practical and pressing importance. Our purpose would in fact be to offer an alternative to that positivism that has taken a dominant hold even among conservative--and Catholic--jurists in our own day. And so, to our friends in the Catholic Thing, I say "stay tuned."
Natural Law wants to come "out of the shadows" eh?. How interesting. In other words, this type of forced, ridiculous argumentation wants to come out of the shadowy world of bought-and-paid-for academic pseudo-scholarship and wants to be taken seriously. Good luck, fellas. If page 61 of this book is any indication you belong in the dark, shadowy gloom of reactionary swamps with a pile of Summas.
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