Month: July 2022

Symposium on Common Good Constitutionalism

JAF

Ever since Adrian Vermeule published “Beyond Originalism” in The Atlantic in the spring of 2020, there has been considerable excitement about Vermeule’s argument that it is time for conservatives to abandon originalism in favor of a more robust approach to law and government. Vermeule’s book, Common Good Constitutionalism (Polity Press 2022), expands upon the argument of the original Atlantic essay and presents his case for a new conservative approach to the law. Over the course of the next week, Ius & Iustitium is pleased to present a special symposium on Common Good Constitutionalism.

Readers of Ius & Iustitium will be familiar with the elements of Vermeule’s argument, but Common Good Constitutionalism sets it forth with admirable force and clarity. It is also an excellent introductory work for an educated general audience, which may well be aware of the ongoing debates about Vermeule’s work and wishes to learn more about his position. And above all Common Good Constitutionalism is a thought-provoking work, pointing toward numerous avenues for further investigation and further discussion. The range of essays presented as part of this symposium shows just how broad the vistas opened by Common Good Constitutionalism are.

It is a lamentable fact that much of the discourse surrounding Common Good Constitutionalism has been driven by Vermeule’s critics. The valued employees of Conservatism, Inc. have hastened, for whatever reason, to haul out their shopworn critiques of not merely Vermeule’s work but also the entire thrust of the classical legal tradition from Aristotle to the day before yesterday. Yet Vermeule understands what his critics do not: the American left of 2022 is not the left of 1982. The ivory-tower crowd can descend from their faculty lounges and think-tank offices and do their best King Canute impressions, but the Marxist waves show no signs of retreating. Ronald Reagan will not save us now.

Happily, however, there are lawyers who are not so insulated from reality by that greenest of cushions. Ius & Iustitium is pleased to present a selection of essays about and inspired by Common Good Constitutionalism written by lawyers coming from the heart of the classical tradition. Michael Foran writes about the book as a challenge to the the conventional wisdom of constitutional theory. Conor Casey writes on the place of the administrative state under common good constitutionalism. Aníbal Sabater writes on Quintilian’s presentation of the natural lawyer as the “good man skilled in speaking.”  Masurius Sabinus writes on the book from the vantage point of a recent law school graduate—an important perspective given the book’s enthusiastic reception amongst law students and young lawyers.  And Jacob Neu offers an all-too-often-overlooked perspective: that of the practitioner. Finally, Adrian Vermeule will respond to the authors of the essays presented here, and there will be a concluding panel discussion of the book and symposium essays via Zoom.

Common Good Constitutionalism has generated unusual excitement, perhaps unheard-of excitement for a work of jurisprudence. The audience of enthusiastic students and young professionals at the book’s recent launch at the National Press Club demonstrates that there is deep interest in Vermeule’s ideas. It is our hope that this symposium will present further opportunities for discussion and debate, above all from those committed to the classical legal tradition.

The Editors

The Short History and Checkered Tradition of “History and Tradition”

Jacob Neu

In three major cases at the end of June, the Supreme Court has relied upon a “history and tradition” test to define the scope of constitutional rights and federal powers. Writing for the Court in Dobbs v. Jackson Women’s Health Organization, Justice Alito overruled Roe v. Wade held that the Constitution did not protect a right to abortion and that unenumerated rights and liberties “must be deeply rooted in this Nation’s history and tradition and implicit in the concept of ordered liberty,” quoting Washington v. Glucksberg in support. In Kennedy v. Bremerton School District, Justice Gorsuch overruled Lemon v. Kurtzman’s test for a violation of the Establishment Clause and held, “The line that courts and governments must draw between the permissible and the impermissible has to accord with history and faithfully reflect the understanding of the Founding Fathers.” And in New York State Rifle & Pistol Association v. Bruen, Justice Thomas rejected reliance on intermediate scrutiny in considering government regulation of firearms under the Second Amendment, holding that the government must show a firearm regulation is support by the text, “as informed by history,” or “comported with history and tradition.” In each case, the Court expressly or implicitly rejected a tiered scrutiny framework and chose to focus instead on how the scope of the right was historically defined within the Anglo-American tradition.

What do “history and tradition” mean in these contexts, and why should they be important? By this test, the conservative majority intends to ground American law within a broader tradition to avoid the temptation of “living constitutionalism.” Yet these cases also demonstrate the problem of originalist reliance on history only at specifically favored moments in time, rather than incorporating a broader understanding of the tradition in which they are embedded. And if the “history and tradition” test is ultimately not grounded in the legal and philosophical substance of that tradition—the natural law and the Western classical legal tradition, as interpreted by English jurists—then they are at best half-hearted and superficial attempts to recall that tradition and will be easily manipulated in future cases. 

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