In 1926, in a case called Village of Euclid v. Ambler Realty Co. that is well-known to approximately all American law students, Justice Sutherland wrote for the Court to uphold a zoning scheme in Ohio. Drawing upon the deferential version of the police-power framework that, I have argued, embodies common-good constitutionalism within American law, Sutherland announced that “if the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control.” Implicitly drawing upon the classical idea of determination, under which the public authority gives reasonable specifications to general legal principles, and also anticipating the famous “margin of appreciation” of human rights law, Sutherland added
it may thereby happen that not only offensive or dangerous industries will be excluded, but those which are neither offensive nor dangerous will share the same fate. But this is no more than happens in respect of many practice-forbidding laws which this Court has upheld, although drawn in general terms so as to include individual cases that may turn out to be innocuous in themselves…. The inclusion of a reasonable margin to insure effective enforcement will not put upon a law, otherwise valid, the stamp of invalidity…. In the light of these considerations, we are not prepared to say that the end in view was not sufficient to justify the general rule of the ordinance, although some industries of an innocent character might fall within the proscribed class. It cannot be said that the ordinance in this respect passes the bounds of reason and assumes the character of a merely arbitrary fiat.
Euclid thus illustrates the classical framework of deferential judicial review.
One might go on to connect Euclid with the recent debate surrounding the Holy Father’s recent encyclical on fraternity and solidarity, Fratelli Tutti, which explains the status of property rights within a larger framework ordered to the common good. In that view, property rights — although long since recognized as an important component of human dignity and development — nonetheless have a secondary status, in the sense that the legitimate public authority may and should regulate them in the interests of the common good. Euclid fits this account like a glove; it is what the principles of Fratelli Tutti would look like embodied in constitutional law.
For my purposes here, however, the critical issue lies elsewhere: Sutherland’s further argument that under an evolving conception of constitutionalism, the legal authority of the state might expand over time, through the application of constant principles to changing circumstances:
Regulations the wisdom, necessity and validity of which, as applied to existing conditions, are so apparent that they are now uniformly sustained, a century ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive. Such regulations are sustained, under the complex conditions of our day, for reasons analogous to those which justify traffic regulations, which, before the advent of automobiles and rapid transit street railways, would have been condemned as fatally arbitrary and unreasonable. And in this there is no inconsistency, for, while the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world, it is impossible that it should be otherwise.
This is, in effect, a nonoriginalist, developmental justification for the administrative state put in the framework of common-good constitutionalism and grounded in the due process clause. Background principles of the classical constitutional order establish the legitimate authority of the state to specify rights within reasonable bounds, and to arbitrate among competing rights when they conflict. Those principles do not change, but their application changes as the economy and society change and develop over time, and legal doctrine develops accordingly. Greater complexity and interdependence imply greater scope for the guiding hand of the public authority.
Sutherland here shows that, contrary to a widespread recent assumption, the unfolding development of doctrine over time need not be a libertarian project, one that increases individual autonomy in ever-more elaborate and insistent ways. Progressive living constitutionalism assumes, usually implicitly, an individualist theory of rights in which autonomy expands relentlessly; the progressive often assumes, without any basis whatsoever, that the unfolding path of the law will always go in a progressive direction. (In the limiting case, becoming aware of the problem, the progressive may attempt to mandate a no-backsliding principle as a matter of constitutional law). Conversely, originalists often implicitly assume the same, although they find that process objectionable.
Euclid shows that both views are incorrect, by contradicting their common assumption that developing constitutionalism is a one-way ratchet in favor of “expanding liberty,” understood in opposition to communal aims. Rather, doctrinal development over time is perfectly consistent with the law becoming ever more oriented to the common good, understood as itself including the good of individuals and their liberties. As economic and social relations become increasingly interdependent, it becomes ever more obvious that no rights are truly “individual” and that one person’s exercise of rights invariably affects others and society generally. Applying unchanging principles to new circumstances, the law allows increasing scope for regulation that shapes, constrains, and if necessary overrides individual rights in order to promote the common good.
There is thus no reason why we may not transpose Euclid’s insight from property rights to so-called personal rights. (Of course, on certain conceptions of rights, the basic justification for personal rights just is “self-ownership.” If so, the point I want to make is even easier.) The common-law entitlements often used to define personal “rights” and “liberties,” not merely property rights, are themselves ordinances created by the public authority for reasons intended to serve the common good. Once we do, it becomes clear that personal rights and liberties are themselves subject to ordination to the common good as well. This is emphatically not a utilitarian doctrine that such rights can be overridden on the basis of aggregate utility. Intrinsic evils are intrinsic evils and due process must be read to forbid the government to inflict them. Instead the point is that the common good of family, city, nation and even of the international order is itself the good of individuals, and that rights must be ordered accordingly.
What might be an example of a Euclid for civil liberties? I will mention only one important possibility to give the flavor of how this sort of argument might run. Our free speech law is in roughly the same obsolete, libertarian condition as the obsolete 19th-century vision of property rights to which Sutherland adverted in Euclid; it must be updated in light of changing circumstances. We have learned primarily from experience, and secondarily from work in economics, social psychology and other social sciences, how radically imperfect is the marketplace of ideas. That marketplace displays a pervasive and increasing complexity and interdependence of the sort that, in Euclid, justified an expanding scope for regulation of property relationships. Indeed, it has become increasingly impossible to even disentangle the concept of a marketplace of ideas from property relationships in the first place.
If this broad claim is true, the consequence is that the market for ideas should no more be seen as presumptively immune from authoritative guidance than is any market for goods. Of course the public authority too may err, but as in Euclid, the ordinary response to that possibility is judicial due process review for arbitrariness. Or, as thinkers as diverse as J.F. Stephen and Ronald Coase observed, we do not ordinarily take the possibility of error on the part of the magistrate as adequate reason for disabling the authority of the magistrate altogether, in the government of ordinary business affairs, and there is no systematic reason to treat the market for ideas differently. In a world of increasing interdependence, in which the speech acts of each may indirectly affect the speech environment of all, Euclid suggests that “[s]uch regulations are sustained, under the complex conditions of our day, for reasons analogous to those which justify traffic regulations, which, before the advent of automobiles and rapid transit street railways, would have been condemned as fatally arbitrary and unreasonable.” A developing, evolving constitution oriented to the common good may well become less libertarian over time, not out of hostility to rights, but due to the insight that rights themselves are based in and justified by what is due to others as well as oneself, and are thus to be ordered to the common good.
Adrian Vermeule
