Hadley Arkes, the Edward Ney Professor of American Institutions at Amherst College, delivered Notre Dame’s annual Constitution Day lecture to a diverse audience including undergraduates, law students, professors and distinguished guests.  The lecture, sponsored by the Office of Research and Department of Political Science, was entitled “Where are the Limits in a Limited Government?” and took place in Friday, September 17 in the Eck Visitors Center.

Arkes, a much-celebrated recent convert to Catholicism from Judaism and author of six books on the Constitution, examined the concept of limited government through the current environment of federal government expansion, from “Obamacare” to the nationalization of the auto industry.

            Arkes’ lecture argued for the foundational place of proper moral reasoning in defining and applying the constitution’s precepts. Professor Arkes began by explaining that there is no list of enumerated functions or rights that offers a guide to the limiting of the government. According to Arkes, “As we get drawn into trying to find that list of enumerated rights and powers we will be deflected to a mirage, and as we get closer and closer to it, we find that it keeps dissolving in front of our eyes.”

            “My argument here is that, those limits on the government as understood classically, whether by Plato, or Alexander Hamilton, were most critically moral limits,” continued Arkes.  Arkes argued that extensions of power as justified or unjustified, legitimate or illegitimate, are defined by our capacity to reason to them.  More precisely, to reason in a specific way, in accord with “canons of moral reasoning, including the canons that are used everyday by ordinary folk, the decisions that are made everyday.”

             Arkes illustrated his point by saying that we do not think it a violation of our natural or constitutional rights when we are barred from a city block because a building on that block is on fire. In this case, the seeming violation of our rights is so patently justified.  “This mode of reasoning”, he argued, “is always with us in certain moral maxims, some in the Constitution, and some not.”

Further, the human being, the moral agent, operates as the reference point for the Constitution. He must have the moral understanding necessary to realize that he does not have the right to do wrong. He is stronger for recognizing this limitation, for it allows him to focus more effort and attention on performing morally sound actions.

“Indeed, the very idea of a Constitution takes its reference from a moral agent, the human person marked by moral understanding,” Arkes said. “He understands that he cannot coherently claim, as Lincoln and Aquinas said, a right to do wrong.  He understands the things not rightful for him to do even in the name of his own freedom.  He understands that he is obliged to restrain his choices to that range of things legitimate for him to do.  He is not weaker in being constrained in that way, …but stronger, for he can concentrate his powers now on that vast universe of things legitimate for him to do.” 

This same logic that guides the individual moral agent is that which must be used to guide the government at large, in determining the reach of its federal power.  Furthermore, the government that operates under those moral restraints as allowed for in the Constitution will enjoy that same strength that the individual acting under moral restraints enjoys.

“And in the same way the government under moral constitutional restraints is not a weaker, but a stronger government, concentrating its powers now on the things right for it to do,” Arkes declared.  “The matter will always turn, most decisively, on moral reasoning about the ends that are justified or unjustified, legit or illegitimate, and the problem will keep pointing us back to those canons of moral reasoning which are treated all to readily, as though they were subjective with no discipline of reasoning attached to them.            Arkes claimed that there is no specific standard, formula, or principle spelled out that neatly addresses the question of  how much governmental power is too much power.  He insists the answer must be found outside of the Constitution itself, in an appeal to the virtue of prudence, and prudence at a very high level.

Ultimately then, the logic of moral reasoning, according to moral canons, is the defining principle responsible for determining the limits of federal power. Indeed, prudence must serve as the guide when deciding which claims to rights have their grounding in the Constitution.

Dean Masuda is a writer who struggles to get his philosophy papers done on time, but who will be damned if he misses a Rover deadline.  Thank him for his hard work at dmasuda1@nd.edu.