Wanted: A Constitutional Ethos

Constitutionalism is the ethos of settling political disputes by law and compromise rather than command and violence, along with the institutions and traditions that make this possible. It supposes that citizens and their parties take turns in office and anticipate that the precedents and practices they establish when in office will be used by their opponents when it is their turn. It requires that government be limited, both to allow people to live fulfilling lives even when they and their friends are not in power and to ensure that the governed have the liberty to inquire into the actions of those who govern and the wisdom of their policies, as well as to develop alternatives for future choice. It supports the rule of law, both to provide stability for the policies those in power establish and to ensure liberty to law-abiding citizens who know their legal obligations whatever they think of them. In a democracy, it establishes majority rule and protects minority rights, even as majorities typically want to expand their rule and minorities their rights. Constitutionalism is a component, in some societies perhaps the chief component, of the common good.

All of this once seemed elementary, though it is probably true that most people saw constitutionalism as a second-best solution in comparison to the wish for absolute and permanent rule by oneself and one’s partisan friends. What I find chilling is how ready contemporary Americans of different political stripes are to discard our constitutional tradition. Hardly a week ago two law professors at the nation’s top two law schools—at any rate the two schools that educated eight of the nine members of the Supreme Court—declared in what used to be considered the nation’s paper of record that the Constitution “is broken and should not be reclaimed,” advocating instead unlimited (national) majority rule.

The refusal to accept election results vetted by legal authorities is another indication of impatience with constitutional processes, as is the recourse to mobbing in the streets and threatening elected officials and judges at their homes. To be sure, there have always been constitutional politics alongside ordinary politics, the parties differing over how the Constitution ought to be interpreted and whether it ought to be reformed, but these usually involved a certain self-restraint, recognizing as the parties once did that the usefulness of constitutional victory depended on overwhelming support for the Constitution itself.

Jesse Merriam, in reading my original essay in this forum, mistook the bait for the catch: although I opened with a comment on conservative theories, my aim was to address constitutionalism, not conservatism. I think it is a virtue, not a vice, of Adrian Vermeule’s Common Good Constitutionalism that it does not supply an “agenda” for a “movement.” While Donald Trump’s victory in 2016 might explain the interest of partisans in looking for a critique of originalism—although not Trump himself, since he dutifully appointed originalists to the bench—it is simply not true as Merriam claims that there were no conservative objections to originalism before then, even if the moniker “common good constitutionalism” is more recent.

Leaving aside Vermeule’s own work on executive power and administrative law, which clearly prepared his more recent study, Hadley Arkes has for forty years expounded a theory of natural-law jurisprudence openly at odds with originalism, at least insofar as originalism is based solely on the positive text of the Constitution, and my own work on the common law dimension of our constitutionalism, featured on this website, has also offered an alternative of long standing. I am not sure that any of this scholarship was intended to initiate a “socio-legal movement.” Perhaps Merriam thinks that is what scholarship ought to do, but to make that argument is different from insinuating that Vermeule and others have failed at what they never intended to do.

I noted at the end of my essay, playfully, that perhaps Vermeule was intending to appeal equally to conservatives and progressives with his theory, and indeed a symposium on the influential law-professor website “Balkinization” in July after the composition of my essay and before its publication showed his work could gain a respectful hearing in liberal circles. In his answer to his critics there he stressed his jurisprudential rather than narrowly political intention in writing. As several of his critics noted, his bid is to change the language of constitutional discourse, perhaps as preliminary to the success of his favored policies but not thereby ensuring it.

What does Merriam mean by “a successful socio-legal movement [with] a concrete agenda that can bind and organize its agents across professional disciplines and areas of public affairs”? Would it be what the progressive law professors I mentioned above also intend, just from the opposite side of the political spectrum? A purportedly majoritarian ideology that can force its way through institutions rather than a political campaign that builds constitutional majorities? Those professors, or at least many of their fellows, look with envy on the Federalist Society and its success in cultivating judicial candidates, but Merriam seems to dismiss it as a “debating society” that has taken a libertarian turn. He recognizes that in a pluralist world like our own, nationalist majoritarianism is unlikely without coalition-building, and in the Federalist Society chapters I know there is genuine interest in common-good constitutionalism, suggesting the libertarian turn is not irreversible.  

Moreover, their insistence on debate—and the dedication to free speech that entails—has been no small part of the secret of their success, as it models the very constitutionalism to which they are dedicated. When Merriam describes the “broader political movement” as being against radical individualism, for moving beyond the “big-versus-small government” conceptualization, and for using national power in support of the traditional family, national identity, and “a religiously infused moral order,” I wonder not about the larger aims, which I largely share, but about whether he thinks they mean to achieve them through or in spite of our constitutional order. Referring to “arsenals of national power” suggests the latter, since the basis of family law and moral order has always been the states, not the nation; the federal government ought not to be destructive of these ends, as under some liberal policies it has been, but they can be genuinely achieved only by citizens, not by government. “Good government” is a better aim than “small government,” I agree, but “self-government” is, as I tried to argue, needed to complete the picture. 

Whatever the adequacy of available theories, the need for a constitutionalism that can speak intelligently and persuasively of the common good has rarely been clearer.

Garrett Snedeker works in close association with the above-mentioned Hadley Arkes, and the gravamen of his comment is to develop the close connection between Vermeule’s and Arkes’ approach to natural law as it relates to constitutional cases. I think he misreads rather than corrects my suggestion that Vermeule has “little patience for federalism and the separation of powers,” saying “Vermeule views them as prudential features of the constitutional order that are subordinate to the ability of the public authority best in a position to preserve the common good.” I am happy to concede federalism and the separation of powers were embraced as a matter of prudential judgment by the framers of the Constitution, but my point is that they have become central elements of our constitutional order, not fungible forms to be manipulated by the prudence of judges or administrators.

Yes, prudence is needed in the exercise of office, and that might variously dictate energy or restraint, but respect for forms is essential to constitutionalism, not ordinarily subject to prudential waiver. Though there is some truth to Justice Robert Jackson’s pragmatic pronouncement in the Steel Seizure Case that political power ultimately belongs to the one who can best wield it, attention to jurisdiction and to the limits of office is ordinarily a helpful measure of who is acting in good faith for the common good. I like Snedeker’s hint that Arkes and Vermeule differ as judicial supremacy differs from executive supremacy; I suppose I would insist on attention as well to the legislative branch.

I also liked Snedeker’s use of Lochner v. New York to illustrate how Arkes and Vermeule agree with Peckham and Harlan (respectively) against Holmes and mainstream progressive majoritarianism, since Peckham and Harlan both consider the question of the common good in relation to New York’s maximum-hour law for bakers, differing in their judgment of whether liberty of contract or regulation best achieves the common good in the circumstances of the industry at the turn of the twentieth century. Without getting into the weeds of the circumstances, I am inclined to think that determination is best left to the legislature, even recognizing that deliberation there proceeds by negotiation among interests rather than rationalistic policy analysis, provided that the common-law right to earn one’s living by the practice of an honest trade is recognized as a limit on arbitrary legislation, a less abstract formulation than “liberty of contract” but no less protective of individuals’ just claims.

I suspect Vermeule would prefer Chief Justice Taft’s dissent to Justice Sutherland’s majority opinion in Adkins v. Children’s Hospital, the 1923 case striking down a federal minimum wage for women in D.C., despite his admiration for Sutherland’s opinions in Euclid v. Amber Realty, the case upholding zoning law, and U.S. v. Curtiss-Wright, a case anchoring governance in foreign affairs in the law of nations, not only the Constitution; and I suspect likewise Vermeule would side with Chief Justice Hughes in overturning Adkins in the 1937 case, West Coast Hotel v. Parrish, where over Sutherland’s dissent the concept of the common good is expanded to include the health of the economy taken as a whole. Arkes stands with Sutherland, endorsing his insistence on liberty of contract as a natural-law instantiation of justice in exchange, not subject to government interference even in the name of some other aspect of the common good. It would be useful for Snedeker to parse the differences between Arkes and Vermeule in Adkins and West Coast, if that were possible, as I think it would reveal theoretical and not merely prudential differences about the meaning of the common good itself.

I was pleasantly surprised by Julia Mahoney’s contribution, as I hadn’t given attention in my essay to the question of feminism and the common good, though I agree it is a crucially important one. Her example of licensing law and its particularly difficult consequences for women is compelling, though I think such laws would be more easily countered by a constitutionalism of individual rights than by common-good constitutionalism, since licensing was typically permitted under the police power as a regulation purporting to serve the common good.

While I agree that recourse to classical law, whether Roman or English, must address the question of the difference in women’s status between today and earlier eras—and should acknowledge the role of liberalism in precipitating that social change—I am not as sanguine as Mahoney that “modern values” are uniformly reassuring. Which modern values? Ensuring educational opportunity for women and appreciating their professional capacity? Seeing gender as a social construction and endorsing creative personal identity? Both?

Given the tendency of the law to define the person abstractly—drawing on legal notions developed specifically for men, not women—I am skeptical that judges or for that matter professional administrators can really think through what may be our greatest challenge today for common good thinking: Do men and women share a common good, both among themselves and with one another? Is this sharing social, or just familial? Can society thrive—can stable families even form—without shared ideas about what a man, and what a woman, is or ought to be?

In his opinion in Adkins, Justice Sutherland referenced the recently ratified Nineteenth Amendment, which he had earlier introduced in the Senate, arguing that it superseded women’s need for special protective legislation, now that women had the right to vote. Here I think he was only half-right: The Nineteenth was not the equivalent of an Equal Rights Amendment, nullifying all differential treatment of the sexes in the law, but in adding women’s voice to the election of representatives, it accorded to women constitutional equality in its most important form and added their witness to deliberation about what law should be. In our post-Dobbs moment, however rocky and uncertain the start, the question of the rights and responsibilities of the sexes and the needs of the families they might form has been returned, at least in part, from the judiciary to political decision in the states and also, as necessary and proper, to the Congress. Whatever the adequacy of available theories, the need for a constitutionalism that can speak intelligently and persuasively of the common good has rarely been clearer.