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Rejecting Vermeule’s Right-Wing Dworkinian Vision

Professor Adrian Vermeule’s recent essay on originalism and the common good, “Beyond Originalism,” is thought-provoking in the best way. Professor Vermeule counsels American conservatives that “originalism has now outlived its utility, and has become an obstacle to the development of a robust, substantively conservative approach to constitutional law and interpretation,” one that he labels “common-good constitutionalism.” This admittedly Dworkinian approach would empower judges to “imagine a substantive moral constitutionalism” that they read into “the majestic generalities and ambiguities of the written Constitution.” They might further derive this moral constitutionalism from “the general structure of the constitutional order and. . . the nature and purposes of government.”

Professor Vermeule’s approach is one that a reasonable legal system could select to pursue the common good. But there is nothing in Professor Vermeule’s essay to suggest that it is the only reasonable approach to securing the common good. More importantly, there are sound reasons to believe that the United States, through its written Constitution, chose a different—also reasonable—approach to securing the common good, one that has the support of the natural law tradition in which inanimate (i.e., positive) law, explicated through technical means, is the most reasonable way to secure the common good. Originalism argues that the United States Constitution employs a system of inanimate, relatively determinate constitutional law to achieve the common good.

There are many potential criticisms of Professor Vermeule’s thesis; in this brief essay, I argue that the concept of the common good itself, at least as it has been pursued in the United States, contradicts Professor Vermeule’s core claim. In short, the common good of the United States, both as a matter of distributive justice (including what offices have legal authority to implement the Constitution and in what circumstances) and as a matter of the rule of law, requires following the Constitution’s original meaning, even when that meaning does not lead to normatively attractive outcomes in some (perhaps many) instances.

There are at least three conceptions of the common good within the natural law tradition, and all of them include, as at least one aspect, the ensemble of conditions that enables members of a community to coordinate their activities in order to pursue their reasonable goals. Two essential facets of this system of coordination are distributive justice and the rule of law.  (Professor Vermeule’s conception of the common good, though not fully described in his essay, seems consistent with distributive justice and the rule of law.) 

The United States does not employ a King Solomon dispensing his wisdom to the people; instead, our written Constitution creates the conditions needed to secure the common good.

Distributive justice includes legal authority as one of the most important goods reasonably distributed in a society. Legal authority is a key mechanism employed by a society to create the necessary conditions for effective coordination. The rule of law is the governance of law over human affairs. It is essential to a legal authority’s capacity to effectuate social coordination because it provides a relatively stable and secure environment within which community members can coordinate. To take a mundane example of these two facets, state legislatures create effective highway regulations to coordinate their citizens’ use of highways so they may go about their lives and achieve their reasonable objectives.

Though the distribution of legal authority and the rule of law are necessary components of any plausible conception of the common good, there are a wide variety of reasonable and inconsistent means to secure both. Throughout history, different communities have employed many different forms of legal authority and the rule of law for a variety of reasons, some poor and some sound. The Western legal tradition and the United States are committed to legal systems that employ inanimate, relatively determinate positive law to achieve the common good. This is also the natural law tradition’s commitment. The United States does not employ a King Solomon dispensing his Solomonic wisdom to the people; instead, our written Constitution’s original meaning (and the Constitution’s distribution of subsidiary legal authority, especially via Article I to the federal legislature) creates the conditions needed to secure the nation’s common good. The United States was not required by reason to take this route but, by the same token, there is nothing in Professor Vermeule’s argument that shows that the United States’ approach to the common good is unreasonable.

More importantly, once a society like the United States determines that its approach to pursuing the common good will utilize inanimate justice and the rule of law, members of that society generally, and legal officers in particular, have sound reasons to follow that approach (assuming a basically just legal system), and they therefore act unreasonably—contrary to the common good!—when they follow Professor Vermeule’s approach. A Vermeulean federal judge, whose “starting point [is the] substantive moral principles that conduce to the common good,” violates distributive justice and the rule of law. This judge harms distributive justice because he has arrogated to himself legal authority that the American legal system allocated to the Constitution (and through it to various officers). The Constitution allocated to federal judges only the authority to “declare the sense of the law,” not to articulate substantive moral principles. Similarly, this judge also harms the rule of law by not giving the parties before him judgment according to the pre-existing law, and instead substituting an injudicious decree based on the judge’s own, previously-unannounced, substantive moral principles.

Professor Vermeule admits that the common good of the United States might theoretically coincide with originalism but rejects the originalist route because “that approach leaves originalism in ultimate control, hoping that the original understanding will happen to be morally appealing.” I’ve previously argued that this formulation is precisely backwards. Originalism is the most normatively attractive way to interpret the Constitution because it is necessary to enable the Constitution to secure the common good. This does not mean that the Constitution or originalism completely secures the common good, or secures the common good in every instance. Indeed, there are many of its provisions the original meaning of which is imprudent or unjust. But the standard by which to judge a legal system that employs inanimate justice is whether the system as a whole secures the common good reasonably well. By that measure, our written Constitution, through the vehicle of its original meaning, overall and on balance facilitates a reasonably just legal system that secures the common good.

Let me end by noting that I agree with many of the substantive goals (at least as I understand them) identified by Professor Vermeule that a sound constitutional system should pursue: peace, justice, abundance, health, safety, authority, hierarchy, solidarity, and subsidiarity. My claim is that the American common good itself—its distributive justice and its rule of law—requires officers to pursue these valuable substantive goals by maintaining faith with the Constitution’s original meaning. No Dworkinian interpretivism necessary. This originalist approach to the U.S. Constitution accords with Aquinas, quoting the Philosopher: “it is better that all things be regulated by law, than left to be decided by judges.”

Reader Discussion

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on April 02, 2020 at 07:25:34 am

Reading this essay brings to mind the late, great, cantankerous Red Auerbach who coached the Boston Celtics during their glory years. Auerbach's salient quality, besides his colorful outspokenness, was his capacity to simplify the complex. I saw him once on TV doing a halftime show on court at the Boston Garden. He was joined on court in the paint by three retired NBA players who were attempting to demonstrate the defensive structure which would be necessary in the second half for the Celtics to slow down the opponent's runaway offense. The on-camera, on-court demonstration by the three retired players was baffling; it made their defensive plan sound confusing and look complicated. It was a plan beyond the comprehension of TV viewers certainly and probably beyond that of an NBA team. After watching silently for two minutes, Auebach stepped forward between the two players, took the ball while holding his cigar, moved into the foul circle and said with the fine street-talk of his Brooklyn accent, "What dese guys means is...."

Auerbach then proceeded in 30 seconds to explain clearly and to demonstrate simply what the players had needlessly complicated and failed to make understandable. The man could simplify and make his points understandable. His most popular, best-selling book, "Basketball for the Player, the Fan and Coach," did just that.

This essay needs Red Auerbach.

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Paladin
on April 02, 2020 at 11:25:25 am

You're absolutely right to take Vermeule seriously when he says: "Common-good constitutionalism is methodologically Dworkinian, but advocates a very different set of substantive moral commitments and priorities from Dworkin’s, which were of a conventionally left-liberal bent." He put his cards on the table with that comment. If the conservatives intrigued by Vermeule only knew all the problems a Dworkinian jurisprudence, they would abandon him on this pretty quick. However, I don't think many integrelists are as familiar with those legal debates as writers for this blog are.
Although in Federalist 78 Hamilton directs judges to exercise neither "neither FORCE nor WILL, but merely judgment," Dworkin is right is correct that a Judge can't completely avoid using his will in some respects. The way an Originalist deals with this problem, when "Hard Cases" come up, is to DEFER to the lawmaker, and at least TRY to avoid exercising his own will in a case. Dworkin would say: don't even try, inject your own morality into the case. I think honest observers realize that without the aspiration to avoid tipping the scales, that makes not only for biased judging, and very un-republican judging. Even with the perfect sense of justice, the mythical "HERCULES" type of Judge that Dworkin imagined, there will still be something gravely wrong with it.
As As Justice Neil Gorsuch recently quipped in his book, A Republic if You Can Keep It, "at least in my experience most of us judges don't much resemble Hercules -there's a reason we wear loose-fitting robes -and I accept the possibility that some hard cases won't lend themselves to a clear right answer!"

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CJ Wolfe
on April 02, 2020 at 19:54:03 pm

Absotively!
What are we observing here - a Vermeuleian form of "judicial engagement" which strikes me as placing the emphasis on "engagement" of a particular Judge's sensibilities and policy prescriptions.

"Originalism is the most normatively attractive way to interpret the Constitution because it is necessary to enable the Constitution to secure the common good. This does not mean that the Constitution or originalism completely secures the common good, or secures the common good in every instance."

How this understanding escapes the highly (mal)educated legal scholar "escapes" me. Does anyone in that legal strata not understand that COTUS was a carefully "crafted" compromise, albeit one that secured the greater blessings of liberty than would have otherwise and theretofore been attainable.
Let us now proceed to tear down that "craftmanship" because we object to the trim on the front porch.

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gabe
on April 07, 2020 at 11:56:22 am

CJ is quite right. Those cards are ugly ones indeed. And I don't understand why Prof. Vermule is taken so seriously by a certain segment of the conservative intellectual class, even folks like Robert George. I've read a few wise statements from him in this whole "Integralism" thing, sure. But I can't help recalling that his earlier foray into trying to influence our constitutional order, The Executive Unbound (co-authored with Eric Posner), which poo-poohed rising concerns about executive power during the Obama years as so much "Tyrannaphobia," would have turned out to be a quite damaging foray if HRC had won the presidency, and it may do harm yet. And now, he's revealed as an open opponent of elementary-level originalism. But the Atlantic highlights him instead of, well, the usual types of constitutional scholars who write for L & L, as the interesting "constitutional conservative" of our time. Sigh. I'm perfectly open to hearing new takes on Christian monarchist thinking as a matter of political theory, and it pleases my perverse instincts that Harvard Law hired Vermule, but may God keep this formulater of Shocking-Yet-Interesting-Ideas away from our Constitution!

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Carl Eric Scott
on April 02, 2020 at 12:07:13 pm

“it is better that all things be regulated by law, than left to be decided by judges.”

This of course is only true when we recognize the fact that can be known through both Faith and Reason, that God, The Most Holy And Undivided Blessed Trinity, Through The Unity Of The Holy Ghost, Is The Author Of Love, Of Life, And Of Marriage.
“Everywhere in the world we notice action...departure and return, going away and coming back; separation and reunion. The separation always looks forward to union, which is creative. All this is simply an image of The Blessed Trinity in the activity of creatures.” - St. Maximilian Kolbe

“Issuing from The Primary Principle, creatures accomplish a sort of circuit, a gyratory movement, such that all things, when they tend to their proper end are returning to the Principle whence they came forth...” St. Thomas Aquinas (33 Days To Morning Glory In Preparation For Marian Consecration by Father Michael Gaitley)

Professor Strang, as long as you and Professor Vermeule, start and end with The Primary Principle, That God, The Most Holy And Undivided Blessed Trinity, Through The Unity Of The Holy Ghost, Is The Author Of Love, Of Life, And Of Marriage, and thus The Author Of our unalienable Right to Life, to Liberty, and to The Pursuit of Happiness, while recognizing that There Is Only One Word Of God Incarnate, as affirmed Through The Unity Of The Holy Ghost, you will recognize that by beginning and ending with Divine Law, your viewpoints on Originalism and The Common Good, are, in essence complementary. Perhaps you should consider writing a book together.

Just as one cannot change The Letter Of Divine Law, Without Changing The Spirit Of Divine Law, so, too, one cannot change the letter of our Constitution without changing the spirit of our Constitution.

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Nancy
on April 02, 2020 at 12:13:48 pm

Agreed on most fronts. However I do have an issue with what I take to be too facile repetitions among originalist-inclined persons of statements such as this: The rule of law is the governance of law over human affairs.

First, you don't need to be a Marxist to understand that only humans ever govern other humans. Second, the problem with this concept in today's environment is that, as Harvey Silverglate and the late Bill Stuntz, among others, have pointed out, when the quantity of "laws" becomes as vast as it now is, we have actually moved regressively back from the rule of law to the rule of administrators of the law, whose discretion to decide which of us to prosecute and which subset of an almost infinite number of "laws" now covering every conceivable aspect of human conduct to charge us with having violated give them essentially the same personal authority over us as the most despotic despot of antiquity. The originalist intention of the Framers was exploded when the commerce clause was made the skeleton key to federal power. Or the agar in the federal petri dish, nourishing an explosion in the population of laws that shames the coronavirus. The principal originalist concept was limited government. Unless and until the unlimited government we now have is radically delimited and the "three felonies a day" and administrative law genies forcibly stuffed back into the bottle, talk of originalism will remain just a play on words.

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QET
on April 02, 2020 at 19:44:10 pm

Halle -bleeping-lujah!

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gabe
on April 02, 2020 at 13:50:16 pm

QET
“The rule of law is the governance of law over human affairs.”
Erroneous law, Law that denies that God, The Most Holy And Undivided Blessed Trinity, Through The Unity Of The Holy Ghost, Is The Author Of Love, Of Life, And Of Marriage, and thus law that denies the inherent Dignity of the human person as a beloved son or daughter, from the moment of our creation at our conception, “has no Rights”, thus we can know through both Faith and Reason, that any Law that denies The Author Of Love, Of Life, And Of Marriage, is in every circumstance, among all people, regardless of one’s desires/inclinations, an unjust law, because it denies the inherent Dignity of being, in essence, from the moment of our conception, a beloved son or daughter.

“When God Is denied, human Dignity disappears.” - Pope Benedict XVI

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Nancy
on April 02, 2020 at 15:06:30 pm

Thank you, Nancy. But I don't share your faith, and consequently am not able to evaluate such matters according to the same precepts as you do. The closest I could ever get would be still be unsatisfactory to the devout: Though he slay me, yet will I trust in him: but I will maintain mine own ways before him.

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QET
on April 03, 2020 at 01:13:24 am

Let us thank Professor Vermeule for frankly acknowledging that, regardless of whether or not originalism is correct on theoretical grounds (and I for one think it is), it is assuredly not up to the task of undoing the damage wrought by the Left, which has, and will ever more stridently, impose its vision of the common good. Hence the need for stronger legal tools.

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Mike
on April 03, 2020 at 10:23:08 am

Do you support a globalism that desires to Render onto Caesar or oneself, what belongs to God?

Such a globalism will destroy both body and soul, for it seeks to destroy both Liberty and our desire for a Happy

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Nancy
on April 03, 2020 at 11:28:53 am

My apologies, that should read:

QET, If you Trust in He Who Is The Way, The Truth, And The Life (Light) Of Perfect Love, that is a beginning, but “Who do you say that I am”, is the question that must be answered in order to Follow Him, Life-affirming and Life-sustaining Eternal Salvational Love, Through The Unity Of The Holy Ghost.
This does not change the fact that originalists, like our Founding Fathers, Affirmed that God, The Most Holy And Undivided Blessed Trinity, (See The Treaty Of Paris that ended The Revolutionary War) Is The Author Of Our Inherent Unalienable Rights Endowed to us at the moment of Creation, which is not the same moment we came forth from our Mother’s womb, equal in Dignity, while being complementary as a beloved son or daughter and that from the beginning, the globalist agenda has been to deny The Christ and worship “Mother” Earth, Pachamama. We cannot “return to order”, through the adoption of a globalism that denies that God Is The Author Of Love, Of Life, And Of Marriage, for our Salvational History has revealed when “God Is denied, human Dignity disappears” (Pope Benedict XVI), and when human Dignity disappears, all Hell breaks out.

Do you support a globalism that desires to Render onto Caesar or oneself, what belongs to God?

Such a globalism will destroy both body and soul, for it seeks to destroy both Liberty and our desire for a Happy

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Nancy
on April 05, 2020 at 22:05:56 pm

“Behold, he is set for the fall and the rising of many in Israel, and as a sign of contradiction; and for your part a sword will pierce your soul, so that the thoughts of many hearts may be laid bare.” Luke.2, 34-35

A Happy Death, is in essence, Life Everlasting, Through The Unity Of The Holy Ghost, Life-affirming and Life-sustaining Salvational Love, God’s Gift Of Grace And Mercy.

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Nancy
on April 07, 2020 at 23:20:46 pm

Hello. The nonspecialist here. Such an intelligent crisp essay by Strang. One question? How does Strang, or anyone, know the “original meaning” of the U.S. Constitution? Presumably, one tries to figure it out. One uses context, older meanings of words, and the tradition of previous interpretations (or rulings) to piece the “original” meaning together. I’m sure I’ve left something out. But the point is: the original meaning is not there lying around like water at the bottom of a well. Rather, it must be constructed according to some reasonable procedure. It is always a horizon. But even the most scrupulous scholar of the law will encounter gaps, indeterminacies, ambiguities, obscurities in the text. No originality approach will eliminate them. Granted, that does not mean one should just substitute one’s own arbitrary reading. But more intellectual humility from advocates of originalism is needed. Just because you scrupulously construct what you deem to be the original meaning does not make it so. You can still get it wrong.

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MT
on May 02, 2020 at 10:23:58 am

I suggest that the common good is the very thing that the Constitution was always to provide: to carry out the meaning and purpose stipulated in the Declaration of Intendance. That is, to protect the God given rights to each legal citizen of the United States to life, liberty and the pursuit of happiness. The very Natural Rights that are guaranteed.

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Jeffrey Cantelope
Trackbacks
on April 06, 2020 at 20:14:27 pm

[…] scholar Lee Strang, in his critique of Vermeule, wrote that in America pursuing the common good requires adhering to the Constitution’s […]

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