In the interest of starting a discussion about constitutional purpose, Sandy Levinson argues "We best honor the Framers, then, by exhibiting their own willingness to challenge the verities of their times and to cease our own often “blind veneration” for the Constitution they created. What has been long settled may not be subject to conversations about “meaning,” but it is surely past time that it be analyzed for its wisdom in a 21st century America." But, what we might ask, has been settled, and what is open for re-creation?
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.)
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.”