Books

In a series of books and articles dating from the mid-1980s, Arkes has written on a priori moral principles and advocated for their impact on constitutional interpretation. He has also dealt with their relation to constitutional jurisprudence and natural law, and their challenge to moral relativism. His works draw on political philosophers from Aristotle through the U.S. Founding Fathers, Lincoln, and contemporary authors and jurists.

John O. McGinnis, reviewing Arkes's Constitutional Illusions & Anchoring Truths in The Wall Street Journal, writes that it tries to find a path between the extremes of originalism, where the meaning of the U.S. Constitution is fixed by its original text, and the idea of the living constitution, where its meaning is updated by evolving moral principles.^[4]

In The Philosopher in the City (1981), Arkes introduced the idea, taken from the Founders, that law should be a teacher of virtue and not just a regulator of vice. Republican virtue, Arkes wrote, presented the solution to the interconnected problems of racial integration, free speech, and urban crime. Arkes also sharply criticized libertarian philosophy as simplistic and morally obtuse.^[5]

First Things (1986) was the first of Arkes's many contributions to legal philosophy, in which he argued for a jurisprudence based in Lincoln's understanding of natural law and contrasted it with positive rights such as the "right to privacy" which underpins pro-abortion arguments.^[6] Arkes returned to this theme in a later book, Natural Rights and the Right to Choose (2002), and elaborated on the moral and legal confusion which he believes was the philosophical legacy of Roe v. Wade. Michael Uhlmann wrote in a review of that book, “Arkes would be the first to acknowledge that his take on particular cases and controversies can be reasonably disputed, but he brings to the table of constitutional discourse a long missing and badly needed element—the recognition that the text of the Constitution rests on a particular kind of moral reasoning that conservatives ignore at their peril, and at the peril of the very rights they seek to protect."^[7]

In 1992, Arkes wrote Beyond the Constitution, a reevaluation of originalism. Arkes questioned the conservative argument that a purely textualist approach to the enumerated rights found in the Bill of Rights would be sufficient to check the advance of legal positivism. Reviewers praised Arkes’s breadth of knowledge, wit, and concision.^[8]

Arkes’s next book, The Return of George Sutherland, was an intellectual history of Supreme Court Justice George Sutherland. Steven J. Eagle reviewed Arkes’s successful defense of Sutherland in the Wall Street Journal, writing, “Advocating that the Supreme Court again espouse natural-rights jurisprudence is an ambitious undertaking, as is attempting to rehabilitate the Supreme Court justice who, for many, personifies the ideas behind substantive due process. Hadley Arkes accomplishes both tasks with rhetorical skill and intellectual tenacity.”^[9]

Articles

Among Arkes's most well-known articles have been his 1974 Supreme Court Review entry titled Civility and the Restriction of Speech: Rediscovering the Defamation of Groups,^[10] his 1996 addition to the First Things symposium on The End of Democracy? The Judicial Usurpation of Politics,,^[11] and the 2013 publication in the Harvard Journal of Law & Public Policy of The Natural Law Challenge, his adapted remarks from the Fifth Annual Rosenkranz Debate at the 2012 Federalist Society National Lawyers Convention.^[12]

With the lawyer and writer Josh Hammer, Matthew Peterson, and Garrett Snedeker, Arkes co-authored in 2021 the influential manifesto "A Better Originalism," arguing for "a bolder, more robust jurisprudence rooted in the principles and practices of American constitutionalism."^[13]

Boards

Arkes serves on the advisory board and writes for First Things, an ecumenical journal that focuses on encouraging a "religiously informed public philosophy for the ordering of society." Arkes also serves on the advisory boards of Americans United for Life, the Catholic League, and St. Augustine's Press. Arkes serves on the board of trustees of the National Center on Sexual Exploitation.

Born-Alive Infants' Protection Act

Arkes co-created and advocated for the Born-Alive Infants' Protection Act. He first gave his proposal to George H.W. Bush in 1988, clarifying that his bill was only the first of many steps to protect life, giving abortion survivors protection under the law. Fourteen years later, on August 5, 2002, his son, President George W. Bush signed the bill into law, with Arkes by his side.^[3]