Far be it
from me to derogate from the study of the civil law, considered (apart from any
binding authority) as a collection of written reason, No man is more thoroughly
persuaded of the general excellence of its rules and the usual equity of its
decisions, nor is better convinced of its use as well as ornament to the
scholar, the divine, the statesman and even the common lawyer.
1 William Blackstone, Commentaries on the Laws of
England *5
Adrian Vermeule’s new book Common
Good Constitutionalism takes on the two dominant strains of American constitutional
thinking – originalism and “progressive and developing Constitutionalism”. He sees the former as an illusion and the
latter as “instrumentalized law” in the service of a “relentlessly
liberationist project”. He is not
seeking balance. His objective is
restore to the center of our jurisprudence the classical tradition which he
finds has been sleeping but never renounced in our law.
Both originalism and `progressivism’ are ultimately rootless. Originalism indeterminate because neither
expected meaning nor original public meaning provides anything more than an
opportunity for personal preference, “ultimately resting on nothing more than
social acceptance of …norms created by officials authorized to do so by a
conventional rule of recognition”. Progressivism fails because it is “an
instrument of the will rather than the reason…as a means to liberate the will
from all unchosen constraints.”
Common good constitutionalism in contrast adapts in each circumstance
to unchanging basic principles of jus civile, the “deliberate ordering of
positive law to the common good”. The
approach is “historical without being originalist”. “[B]ackground legal principles do not evolve
like “living constitutionalism” but are adapted “to local circumstances and
changing conditions”. Good law can,
thus, be objectively determined and measured, taking into account the social
nature of mankind, rather than the individualism underlying `progressivism’.
Vermeule uses the
common good – a Catholic meme - as the
touchstone. The classical tradition, he explains,
“embraces the view that law is ordered to the common good…[that] it is law’s
nature to be so ordered”. The “positive
law” is located ‘within a larger objective order of legal principles and can
only be interpreted in accordance with those principles.” It is a take no prisoners approach – and in elegant fashion he makes a powerful case.
Originalism – the dominant approach today is predominant on the right where it was formulated to disrupt the “progressive legal theorizing of the Warren and Burger Courts”. But there are also left manifestations. Vermeule asserts originalism is in a “decadent phase”. It is trapped between a “normative” stance – that we are bound by the expectations of the drafters – and a “rhetorical posture” - inherently indeterminate `original public meaning'. Determining the “specific expectations” of the Founders is a blind alley because it is incapable of application to changed circumstances. Shall - as the drafters expected - liberty and property not extend to women? To African slaves and their children?
Divorced from such expectations “abstract originalism” is
trapped by a search for meaning which is inevitably shaped by the policy
preferences of the interpreter. Originalism of this latter sort has no boundary and becomes indistinguishable in
that sense from the liberal “living Constitutionalism” of Yale’s Jack Balkin, who Vermeule suggests is well aware of the trap set.
Vermeule relies substantially on Ronald Dworkin’s observation
that originalism, unable to "specify the level of generality at which meaning is determined", is forced to retreat to “public meaning”. But that is itself “ambiguous” and independent of the intentions or expectations of the drafters. So the choice between expected meaning and
public meaning can only be made “on the basis of normative principles of
political morality” grounded in semantic
content. But the meaning of due process,
equal protection of the law, or cruel and unusual punishment cannot be
fixed. As Georgia State’s Eric Segall
says – the justices of the Supreme Court are not judges of the law because they
cannot determine the law in order to be driven by it.
So what is the “common good” which today lies cloaked in “the
language of `fundamental fairness ‘and similar formulations”? It is “not the sum of individual goods, but
the indivisible good of a community ordered to justice, belonging jointly to
all and severally to each”. Judges
therefore should and must be guided in their judgments by “justice, peace, and
abundance” as the “legitimate ends of government”.
Vermeule will encounter sharp resistance to his elegant
formulations as he addresses a series of iconic holdings regarding alcohol,
hourly wage workers, same sex marriage, and scruples about contraception.
To demonstrate classical law’s forgotten compatibility with our law Vermeule relies on opinions of the late 19th and early 20th centuries regarding the `police powers' said to reside in the states. He discusses a majority opinion approving of a Temperance movement-driven state `prohibition' constitutional provision in Kansas, an opinion for the Court upholding a Utah statute limiting hours of work for miners, the majority in Jacobson v. Massachusetts approving mandatory smallpox vaccination, and Harlan's dissent in Lochner -which struck down New York legislation regulating hours of labor
Harlan’s opinion for the court in
Mugler v. Kansas (1887) upheld the Kansas state constitutional bar on intoxicating
liquors “except for medical, scientific, and mechanical purposes”. Vermeule highlights Harlan’s declaration that
No one may rightfully do that which the law-making power, upon reasonable grounds, declares to be prejudicial to the general welfare.
In 1898 Harlan joined the majority in Holden v. Hardy "upholding an eight hour day (state) law for miners" in Utah. The Court there wrote:Of course, it is impossible to forecast the character or extent of these changes, but in view of the fact that, from the day Magna Charta was signed to the present moment, amendments to the structure of the law have been made with increasing frequency, it is impossible to suppose that they will not continue, and the law be forced to adapt itself to new conditions of society, and, particularly, to the new relations between employers and employees, as they arise.
“Obergefell should have been
decided the other way” because “that marriage can only be the union of a man
and a woman fits the telos of the institution…the common good through
reproduction, the sine qua non of a continuous political community and of
a flourishing, fully human polity”.
Obergefell is “the valorization of will at the expense of the natural
reason”.
Vermeule's stance, seeking to impose sexual mores fading in the public mind, will doubtless draw much criticism. But it seems
to me to be the least consequential of his arguments. That ship has sailed. Although some, like the Roman Catholic Catechism
at No.
2357 still treat homosexuality as “intrinsically disordered” the broader trend in
the society is toward acceptance.
Vermeule similarly laments the Bostock v. Clayton County decision
recognizing discrimination against transgender persons as protected by the
Civil Rights Act of 1964 prohibition of discrimination based on sex. But this lament too seems fruitless – even the
bathrooms at Fordham are now labeled “All Genders”. Any attempt to reimpose the former prohibition seems destined to fail, though exceptions to general anti-discrimination laws will likely be allowed by a Court composed of six conservative Roman Catholics (though one - Gorsuch -has moved next door to the Episcopal Church).
But in other respects Vermeule will win praise and affection
from “progressives”. High on that list
is his view that ““health, safety, security, , and a right relationship with
the environment” expresses “the goods of peace, justice, and abundance”.
In two respects Vermeule, as a prominent conservative
jurist, parts company with his accustomed cohort.
His approach to text is Aristotelian, and his embrace of the modern
administrative state warm. Regarding
text he turns to the concept of Epikeia – derived from Aristotle- the equity of
the statute –“a virtue pertaining to legal justice that adjusts the application
of the law from its literal text to track a reasonable account of the common
good.”
Vermeule’s embrace of the administrative state is dramatic,
saying “our administrative law is built around juridical principles that are
part of the larger domain of political morality, yet retain their distinctive
character as legal morality”. But,
turning to Madison’s abhorrence of combining legislative, executive, and
judicial power as a source of tyranny John
Roberts in the 2013 City of Arlington case lamented the growth of the federal bureaucracy and
the Code of Federal Regulation as a threat of tyranny that would leave the
founders “rubbing their eyes”. Roberts
said “[a] court should not defer to an agency until the
court decides, on its own, that the agency is entitled to deference.” (emph. added)
Vermeule in contrast invoking Ulpian’s vision of jurists as “priests”
says “After all, broad deference to administrative determinations is itself a juridical
principle, rooted in political morality, that can serve the common good.”
As the Supreme Court continues its march through the forest of precedents it seems determined to overturn it will find itself embroiled in public controversy the likes of which it has not seen since 1842's Prigg v. Pennsylvania which commanded states not to interfere with efforts to recapture slaves.
The Court now addresses the Democratic administration of Joe Biden the agenda of which it has already challenged:
- in the Texas SB 8 abortion decision – exempting Texas from the doomed Roe v. Wade decision,
- spurning the Department of Health and Human Services anti-eviction mandate, and
- blocking the Department of Labor from enforcing the Occupational Safety and Health Administration’s COVID vaccination or test Emergency Temporary Standard.
In
none of these decisions was the common good a substantial factor. In NFIB v. Department of labor the recent
challenge by large businesses to the OSHA vaccine or test Emergency Standard
the Supreme Court majority [6-3] in an unsigned opinion declared determination
of the public good to be beyond their scope.
Rather than, as is customary in injunctive relief cases, make a public
interest determination the Court, noting the government’s claim that the rule
would save thousands of lives and many more from hospitalization declared
It is not our role to weigh such
tradeoffs. In our system of government, that is the responsibility of those
chosen by the people through democratic processes.
Vermeule would disagree – seeing the common good as the
purpose of it all.
-
George Conk
- March 10, 2022 - revised
2
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