Constitutional Illusions and Anchoring Truths: The Touchstone of the Natural Law
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...
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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.
Introduction: the anchoring common sense and the puzzles of the law; 1. On the novelties of an old constitution: settled principles and unsettling surprises; 2. The natural law - again, ever; 3. Lochner and the cast of our law; 4. The strange case of prior restraint: the Pentagon Papers; 5. Near revisited; 6. The saga of Frank Snepp and the new regime of previous restraints; 7. And yet … a good word on behalf of the legal positivists; 8. Conclusion and afterword.
