Common Good Constitutionalism. Adrian Vermeule
and the natural law, in hard cases. The same is chronically true of the positive civil law, indeed of any body of law (whether lex or ius or both) that is more than trivial. Disagreement, by itself, is neither here nor there, and it is hardly unique to the natural law or the common good. Every June, the Supreme Court gives ample illustration that a body of nine lawyers may split almost down the middle as to the meaning of positive laws, yet without undermining the belief of any of the Justices that there is nonetheless a right answer. As Richard Helmholz puts it, partial indeterminacy “is true of virtually all fundamental statements of law – Magna Carta, the Bible, the United States Constitution, for instance. They have not lost their value or forfeited their respect among lawyers despite long continued variations in the conclusions to be drawn from their contents.”38 And, Helmholz continues, “natural law itself did not claim to provide definitive answers to most legal questions that arose in practice.”39 Rather it provides general principles that must be rendered concrete by determination.In short, the possibility of “disagreement” is often cast as an objection to classical constitutionalism by those who ignore profound disagreements over the positive constitutional law, and over the best conception of abstract constitutional concepts embodied in that law, such as “liberty” and “equality.” This arbitrarily selective emphasis on disagreement is an infallible sign of ideology, a kind of myopia. These and other points will be explicated in what follows.
Plan of the Book
Chapters 1 and 2 together lay out a positive vision of common good constitutionalism, both generally and as an approach to our own constitutional order in particular. Chapter 1 offers a general, positive definition of the common good, a sketch of common good constitutionalism, and an account of its basic contours, premises, and commitments. Chapter 2 then turns to our own constitutional order, beginning with the ius commune – the rich stew of Roman law, canon law, and other legal sources that formed the matrix within which European legal systems developed – and its relationship to Anglo-American law. That relationship is much closer than many American lawyers realize, partly because of a tradition in Anglophone legal theory of cheerleading for the exceptionalism of the common-law tradition.
Chapter 2 then turns to a series of demonstration projects involving both justification and fit. They aim both to put common good constitutionalism in its best light, and also to show how deeply influential the classical tradition has been on the foundations of our constitutional order. I discuss the law of due process and economic regulation in detail, arguing that the first Justice Harlan’s dissent in Lochner v. New York (1905)40 amounts to a model judicial opinion for common good constitutionalism, and that the Court’s deferential due process jurisprudence in the area of social and economic regulation generally embodied the classical idea of determination. I then turn to Dworkin’s favorite interpretive chestnut, Riggs v. Palmer,41 the “Case of the Murdering Heir,” showing that a certain type of interpretive textualism is itself justifiable in terms of the common good, and that such textualism is in fact built into the classical legal tradition. That classical version of textualism has built-in limits, however: general legal principles drawn from the ius naturale and the ius gentium may be used to clarify and construe ambiguous positive texts. Finally, I examine the famous opinion in United States v. Curtiss-Wright Export Co.,42 showing that and how the Court drew upon the classical legal tradition to interpret the fundamental nature of American sovereignty, the powers of the presidency, and the role of the ius gentium in our constitutional order.
Chapters 3 and 4 turn to recent American law and legal theory. I examine the main competitors of common good constitutionalism: originalism, until recently the all-but-official view of the conservative legal movement, and progressivism, still the dominant ideology of the legal academy by sheer weight of numbers. Chapter 3 argues that originalism, the main competitor to common good constitutionalism on the American scene, is an illusion. It exists primarily as a rhetorical posture and an implicit, but only intermittently acknowledged, set of normative commitments. Originalism lacks the internal theoretical resources required even to identify meaning without normative argument at the point of application, most obviously and explicitly in hard cases, but necessarily in all cases. In courts, for example, originalist decisions are pervaded by commitments of political morality that judges use to decide legal questions. It follows that originalism, in this sense, does not actually exist. I illustrate the point with recent decisions from our putatively originalist Supreme Court, including Bostock v. Clayton County, Georgia,43 which interpreted Title VII of the 1964 Civil Rights Act44 to cover sexual orientation and gender identity, and Seila Law v. CFPB,45 which invalidated the independence of the Consumer Financial Protection Bureau. These decisions can only be described as Dworkinian, despite the contrary self-conception of their originalist authors. The Justices are speaking fit-and-justification without knowing it.
Chapter 4 turns to progressivism. Here my basic aim is to show that progressivism presupposes a particular and contestable vision of the good, and to show that a non-originalist, common good approach to constitutionalism need not presuppose that vision. Like originalism, progressivism emphatically works with an unacknowledged vision of the good, but the progressive illusion takes a different form; progressives take themselves to simply be liberating individuals from the unchosen bonds of tradition, family, religion, economic circumstances, and even biology. This is, of course, just another very particular account of human flourishing, and it is a wildly implausible account. The answer to progressivism’s liberationist theory of the good is not to pretend that the law can be identified independent of morality, the answer given by originalism. Instead the answer is to understand that law flourishes as law when it incorporates, not liberationism whether of the economic or sexual varieties, but genuine concern for the common good at ever higher levels – individual, family, city, nation, and commonwealth of nations.
I also rebut the widespread assumption that an organic, developmental vision of constitutionalism must be a progressive vision. A tendentious slogan of originalists is that “classical constitutionalism is just another type of living constitutionalism.” But it is perfectly possible to have a developing constitution that adapts basic principles to changing situations in order to promote the common good over time, without subscribing to a Whiggish “living constitutionalism” that promotes individualism, radical autonomy, and identitarian egalitarianism – the aims of the progressive movement in the Anglophone world.
Accordingly, I draw upon John Henry Newman’s idea of the “development of doctrine” to distinguish developing constitutionalism from progressive constitutionalism. Under developing constitutionalism, natural legal principles remain constant even as interpreters unfold the implications of those principles and apply them to new circumstances over time, whereas under living constitutionalism the law is instrumentalized to promote an ongoing agenda of progress. To illustrate both possibilities I offer a trio of examples: Obergefell v. Hodges,46 Euclid v. Ambler Realty,47 and an international declaration of pro-life principles from 2020 called the Geneva Consensus.48 The first is a paradigm of progressive instrumentalization of the law. The second and third illustrate healthy doctrinal development in the direction of solidarity and community. The key point here is that nothing in a developing, organic account of constitutionalism necessarily presupposes or requires a progressive theory of the good for human beings, with a paramount emphasis on individual autonomy.