Timon Cline, writing in the FedSoc Harvard Journal of Law & Public Policy, rebuts 11th Circuit federal appeals court judge and prominent conservative William Pryor's recent attack on Adrian Verneule's book Common Good Constitutionalism.
by Timon Cline1 [Deputy Attorney General - New Jersey, and Westminster Theological Seminary]
For a legal theory self-professedly predicated on history and historical meaning,
originalism is consistently bad at history. Originalists excel, however, at cherry-picking the
record—ironic for a political strategy hatched to combat the Warren-era’s so-called judicial
activism. Justice John Paul Stevens aptly and memorably identified this conspicuous selectivity
of the originalist majority in his Van Orden v. Perry dissent.2
In his assault on “living common goodism,” as he pejoratively refers to the classical legal
tradition lately recovered by Adrian Vermeule and Conor Casey, Circuit Judge William Pryor is
nothing if not a faithful practitioner of originalist historiography.
3 His recent Federalist Society
speech, subsequently published in the Federalist Society Review [Against Living Common Goodism], is a representative instantiation
of this impulse. Reason and National Review were predictably ecstatic,
4
as they were about his
Heritage Foundation lectures last fall.
5
In their response to Pryor, Vermeule and Casey intentionally sidestep some of the
historical questions raised by Pryor.6
Indeed, Vermeule (rightly) makes clear in his book that
while the American founders should be generally conceived as classical lawyers, his project is
not predicated on any kind of filial piety as such.7 As Vermeule well knows, this is a low
hanging, irresistible fruit for originalists
***
As Vermeule has insisted more than once against this persistent, presumptuous jab,
interpretive method and institutional allocation are distinct inquiries. Pryor, like most
originalists, melds them into one. But what common good constitutionalist are arguing is that as
a heuristic, a governing political rationality and justification of authority, the common good
should influence all law making, whether legislative or judicial.82 In fact, following Harlan (and
Aquinas), Vermeule believes that “judges do and should broadly defer to political authorities,
within reasonable boundaries.”83
The rub, however, is when it comes to tough cases. At that point, the originalist dutifully
refers to the textual restraints imposed upon him—ius is subjected to lex, to the detriment of
iustitia—whereas the classical lawyer recognizes the priority of the higher law whether
manifested in statute, constitution, custom, or principles of natural justice preserved in the
synderesis of all reasonable creatures.
84
Even if Pryor may claim Iredell for his camp, Vermeule may easily claim Chase and
many others beside. If Judge Pryor really wants to put “living common-goodism” down, he will
have to extend beyond the tired originalist cherry-picking historiography that requires little more
of its proponents than citation of a “favorite founder.”85
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