Judging the Common Good

Ryan J. Lanier

Conservative legal scholars have long debated how the Constitution ought to be interpreted. While the judicial philosophy of “originalism” has dominated conservative jurisprudence for decades, calls for a system of interpretation rooted in morality have remained. The latest flare up in this ongoing debate came with the publication of Adrian Vermeule’s essay “Beyond Originalism” in The Atlantic. A Professor of constitutional law at Harvard Law School, Vermeule argues that “originalism has outlived its utility” to the point that it “has become an obstacle to the development of a robust, substantially conservative approach to constitutional law and interpretation.” In his promotion of what he calls “common-good constitutionalism,” Vermeule lays out a system that threatens to undermine the American constitutional system, while also pointing out the flaws and errors of an originalism that becomes purely a libertarian approach to interpretation.

Framed in the light of the current coronavirus pandemic, Vermeule asserts that our approach to constitutional reasoning “should be based on the principles that government helps direct persons, associations, and society generally toward the common good.” In this way, the courts will find themselves in the position to legitimately rule in the interest of maintaining the common good. From this foundation, Vermeule seems to be on strong ground. The government, after all, should act to preserve the common good of all of its citizens. What his essay fails to consider, however, is that the best way for the government to protect the common good is for it to remain within the confines of the American Constitution.

Vermeule’s new system of constitutional interpretation rests on a faulty understanding of originalist thought. True originalism rests on the idea that the Constitution ought to be interpreted as written, without room for judges to rewrite the law. Vermeule, however, sees things differently. For example, in an attempt to turn Burkean traditionalists against originalism, he adopts the argument that “originalism is sometimes revolutionary,” therefore making it incompatible with traditional conservative thought. To defend this position, he, like many other opponents of originalism, points to the Supreme Court’s decision endorsing the right to own firearms in District of Columbia v. Heller. This revolutionary tendency serves as a direct foil to the calls for slow innovation advocated by Burkeans.

This criticism, however, fails to consider the nature of originalist decisions such as Heller. In Vermeule’s mind, such decisions mark a radical departure away from Court precedent and historical basis in the same way that Justice Anthony Kennedy’s infamous assertion that “at the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and the mystery of human life” articulated in Planned Parenthood v. Casey. This claim, however, fails to consider the roots of the Second Amendment in the case of Heller as a decision rooted in the historical context of the American Founding. Justice Kennedy’s defense of the right to an abortion, however, is merely a philosophical abstraction that lacks basis in the laws that judges are meant to interpret. As laws provide the ultimate protection of the common good among men, is it not better for us to look to history as our source of interpretation, even if it is long forgotten, rather than our own philosophical abstractions?

Vermeule’s critique of originalism further falls flat in his attempt to provide a history rooted in the desire to allow “legal conservatives to survive in a hostile legal environment” such as that present in the 1970s and ’80s. In this telling, originalism was merely a response to the overactive Warren and Burger Courts, which showed little regard for the text and history of the Constitution, choosing to innovate and expand rights with little to no constitutional basis.

This approach to originalistic thought ignores the very roots of the legal theory that many conservatives adhere to today. In fact, the core tenant of originalism comes from a figure who lived long before the activism of the Warren and Burger Courts. As any originalist could tell you, the job of the judge, in the words of the great Chief Justice John Marshall, is “to say what the law is,” not what a particular judge believes it ought to be. Even before those famous words in Marbury v. Madison, Alexander Hamilton laid out the role of the judge in The Federalist. In Federalist 78, he writes that the judiciary will “have neither force nor will, but merely judgement.” These examples, among many others, show the originalist approach to interpretation goes far beyond a mere response to the radicalism of the Warren and Burger courts and instead finds its roots in the very foundation of the American experience.

We turn now to the argument that the new approach to constitutional interpretation “should take at its starting point moral principles that conduce to the common good.” Indeed, a constitutional system that “include[s] respect for the authority of rule and of rulers” in addition to “respect for hierarchies needed for society to function” and “respect for the legitimate roles of public bodies and associations at all levels of government and society” as well as the promotion of “solidarity within and among families, social groups, and workers’ unions” seems like a great thing to many conservatives, especially those of a traditionalist bent. This approach, however, ignores two major factors: (1) the moral impacts of subjecting the “common good” to the decision of a judge; and (2) the ability of the United States Constitution to protect the common good as originally understood.

The first objection I have laid out strikes at the heart of Vermeule’s position and shows how such an interpretation actually runs counter to the common good. Vermeule argues that under his system, “common-good constitutionalism does not suffer from a horror of political domination and hierarchy” due to the fact that “it sees that law is paternal, a wise teacher, and an inculcator of good habits.” This system, however, makes American citizens subject to the will of judges with competing views of what the common good is.

Without a universal standard by which to judge the common good, judges find themselves free to define the common good as they see fit. This approach would work well in a system in which all people share a common understanding of what is best for all people. This approach fails, however, in a nation as diverse as the United States. If Vermeule’s approach were to be implemented in the United States, it would open the door to a common good in flux. Depending on what faction holds power at what times, the American definition of the common good could range from traditional Catholicism one year to radical secularism in another. This constant flux does nothing to protect the common good. Instead, it only lays the foundation for it to be undermined.

Under Vermeule’s system, the person or group in power will possess the authority to determine the common good. As a result, all other groups in the minority will find themselves oppressed as the dominant power declares that their system of beliefs runs counter to the common good as implemented. Counter to the claim that the ragion di stato⸻reason of state⸻ will provide authority and assure that “authority and hierarchy” are joined with “solidarity and subsidiarity,” this constitution does not provide the needed checks necessary to hold things in place. This system requires that the state be ruled by a single ideology or religion, which as has been shown, would leave no room for any others. Without this single grounding principle by which all things are to be judged, the definition of the common good will be blown around by the wind with no firm anchor to hold it in place, thus leaving it subject only to the gales of the time.

Not only does this provide no moral system, as Vermeule claims it will, but this also undercuts that ability to practice morality. How can we have a moral system if there is nothing to root it in? Morality cannot be abstracted from nothing or from a sense of what we feel is good. Instead, it must be rooted in something that transcends both our present circumstances and humanity itself. It must come from something higher than man, something that exists outside of our control. Any other moral order should terrify the conservative. If we open the door to the moral order being subject to the claims of the majority, we ignore Russell Kirk’s assertion that “human nature is a constant, and moral truths are permanent.” Indeed, if we ignore this core tenant of conservatism, what are we to conserve?

Vermeule’s constitutionalism further alters the idea of what a judge ought to be. Under the common-good approach, a judge is free to act according to his or her own principles, whatever their roots may be. This approach allows the judge to make themselves feel good about their decisions, as they can justify their decisions through a form of confirmation bias. I believe it; therefore, it is true. Justice Antonin Scalia addressed this very issue when he laid out the conditions necessary to be a good judge. In order to be “a good and faithful judge,” according to Scalia, “you have to resign yourself to the fat that you’re not going to like the conclusions you reach.” Always liking your decisions, he asserted, meant “you’re probably doing something wrong.” Indeed, judges aren’t given the job so that they can feel good about the decisions they reach. They are given the job in order to assure the faithful execution of the laws and the protection of the res publica.

In addition, Vermeule argues that the judges should take on the jobs of others, in this case that of legislators when they examine the laws. The Founders never intended for judges to act as legislatures. It is for this reason that the judiciary was created as its own independent and coequal branch, rather than a subset of the legislature. I for one would not want my partisan legislator to act as my judge in the House just as I would not want my judge to serve as my legislator in the court.

At this point, we must ask ourselves how moral it would be to implement a legal system that opens the door to moral relativism and thus the undercutting of morality itself. Are we morally culpable if we unintentionally destroy the foundations of traditional morality in an attempt to establish that same morality as the law of the land? Ultimately, the judge that acts based on his own moral beliefs is immoral.

Finally, when we make judges the primary arbiters of the common-good, we remove the promise of equality before the law. The sole purpose of having judges is to have someone who is not a political partisan to resolve disputes. To return to my earlier example, how can equality before the law be achieved if a Catholic finds themselves before the Court of an atheist or an atheist before a Catholic, if the law is to be determined by the one who holds the power?  

Vermeule’s argument relies on the idea that judges may cut away the law or place seeds where he wishes. Inherent to this argument, though, is the fact that times change, and with them so must our laws under this mode of reasoning. Indeed, a close examination of the practical application brings into question the permanence and lasting impact of our laws. The consequences of this system of beliefs is well articulated in this exchange between Sir Thomas More and his son-in-law William Roper in Robert Bolt’s play A Man For All Seasons:

William Roper: “So now you give the Devil the benefit of law!”

Sir Thomas More: “Yes! What would you do? Cut a great road through the law to get after the Devil?”

William Roper: “Yes, I’d cut down every law in England to do that!”

Sir Thomas More: “Oh? And when the last law was down, and the Devil turned ‘round on you, where would you hide Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!”

If we follow the path laid out by Vermeule, then we ourselves have become William Roper, willing to cut down any law that gets in the way of achieving our goal, regardless of what that means for the future. Indeed, if we truly desire to preserve the common good, then we must assure that we do not destroy everything that keeps us safe and strong. After all, how can we preserve the common good if we remove everything designed to assure that it prospers?

In light of the failures of “common-good constitutionalism,” however, it is important for us not to ignore the key facts that Vermeule gets right. In fact, his assertion that each person ought to be free to “define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life” laid out in Planned Parenthood v. Casey ought to “be not only rejected but stamped as abominable” perfectly highlights the evils that have arisen under our current constitutional system. Indeed, a system of interpretation that resorts purely to legal positivism alone or remains devoid of any acknowledgement of the government’s role in preserving the common good is morally bankrupt. At the same time, however, leaving judges the power to make law from philosophical abstractions rather than history and precedent unmoors the law from the basis it needs in order to be effective.

In the end, common-good constitutionalism provides a well-thought out response to real problems that exist in conservative legal interpretation. While there are aspects of originalism that have been corrupted and must be fixed, this is not an excuse to throw everything out the window in favor a new system. Indeed, while originalism leaves room for incremental change and the ability to complete necessary reforms, common-good constitutionalism is itself a radical solution that advocates for radical actions that would be considered deeply foreign by our nation’s Founders. If we want to truly assure that the common-good prevails, then we must remain committed to the principles that have made America great and protect the rights of every American.

About the Author

Ryan Lanier is the Editor-in-Chief of American Discourse.

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