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Ius & Iustitium welcomes submissions from academics, practicing lawyers, and students interested in the classical legal tradition. The following essay was submitted by Cass R. Sunstein, the Robert Walmsley University Professor at Harvard University.

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Cass R. Sunstein^*

Abstract

In Bolling v. Sharpe, the Supreme Court struck down a federal statute segregating the schools in the District of Columbia. The Equal Protection Clause is inapplicable to the national government, and the Court relied on the Due Process Clause of the Fifth Amendment. Bolling v. Sharpe has been followed by many cases that find an “equal protection component” to the Due Process Clause of the Fifth Amendment (“reverse incorporation”). These cases are impossible to defend on originalist grounds, and they are exceptionally challenging to defend on textualist grounds. They are best understood as an embodiment of “living constitutionalism” or some related approach (potentially including common good constitutionalism). Dobbs v. Jackson Women’s Health Center, overruling Roe v. Wade, adopts an interpretation of the Due Process Clause of the Fourteenth Amendment, rooted in a combination of text, originalism, and tradition, that generally sets itself against living constitutionalism or related approaches, and that is incompatible with the approach in Bolling and successor cases. Under the approach in Dobbs, discrimination on the basis of race and sex, or on any other ground, should be subject to rational basis review (at most) – and should frequently be upheld. If this is an unacceptable conclusion, it is a strong point for Bolling and against the approach in Dobbs, at least under one view about how to choose a theory of constitutional interpretation.

Continue reading “The Enigma of Bolling v. Sharpe” →

Ius & Iustitium is pleased to present Adrian Vermeule’s response to the contributions in the symposium on his recent book, Common Good Constitutionalism. A general introduction to the symposium (including links to the contributions) may be found here. Vermeule is the Ralph S. Tyler Professor of Constitutional Law at Harvard Law School.

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My heartfelt thanks to the editors of Ius & Iustitium for organizing this illuminating symposium on Common Good Constitutionalism (CGC). The contributions of the participants uniformly comprehended the thrust and aims of the book, and generally added valuable explication or elaboration of its ideas. Taken as a group, the participants have, for the most part, sketched a healthy conception of the relationship between the venerable theory of classical lawyering and its practice under current circumstances. My remarks will center on that relationship.

Continue reading “The Theory and Practice of Common Good Constitutionalism” →

This is the fifth piece Ius & Iustitium is presenting in its symposium on Adrian Vermeule’s new book Common Good Constitutionalism. A general introduction to the symposium may be found here. Jacob Neu is a partner at Bradley Arant Boult Cummings LLP.

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When law students ask me what my favorite law school class was, they often assume it was something doctrinal or practical related to my work as a patent attorney or the broader discipline of intellectual property. So my usual answer, that I thoroughly enjoyed a class on American Legal History discussing the period from 1860-1940, often takes them by surprise.  Part of this is just my hobbyist’s interest–I double majored in history alongside mechanical engineering. But the other part is that the social, historical, and legal context provided by a legal history course has helped shape how I think through the application of the law in many contexts over my eleven years of practice. I will never explicitly cite a case or legal theory discussed in that class, but knowing how the law evolved and what the competing interests and theories are does shine a light on how to craft a contract clause or structure a legal argument.

Continue reading “Common Good Constitutionalism for the Working Lawyer” →

This is the fourth piece Ius & Iustitium is presenting in its symposium on Adrian Vermeule’s new book Common Good Constitutionalism. A general introduction to the symposium may be found here. Masurius Sabinus is a recent graduate of Harvard Law School.

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Every spring, the Harvard Law Review rents out the Harvard Club of Boston for its annual black-tie banquet. Student-editors, alumni, and professors all throng to the Gilded-Age neoclassical ballroom in Back Bay, there to drink and dine between blazing fireplaces—and beneath the Harvard-themed tapestries that bedeck the walls. Like a tapestry decorating the halls of legal scholarship, Common Good Constitutionalism combines various intellectual strands in service of a coherent picture of the law. I aim to isolate the main strands Professor Adrian Vermeule weaves together, and to explain the purpose each thread serves in the overall work. I also highlight some strands that have received too little attention, and discuss one strand that Vermeule might have threaded more fulsomely.

Continue reading “The Tapestry of Common Good Constitutionalism” →

This is the third piece Ius & Iustitium is presenting in its symposium on Adrian Vermeule’s new book Common Good Constitutionalism. A general introduction to the symposium may be found here. Aníbal Sabater is a lawyer in New York City specializing in international arbitration.

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In the classical legal tradition, the lawyer who argues cases of consequence, the orator, is a “good man skilled in speaking” (“vir bonus dicendi peritus”).^[1]  The definition first appeared in Cato the Elder and then Cicero, but it was a Roman orator from the early days of the principate, Quintilian, who developed and established it as part of the canon.  A talented speaker from Calagurris, Hispania, Quintilian was educated in Roman Stoic circles and had a successful career in the forum, after which he retired to write and school others in oratory.  He was “a patient, moderate, reasonable man, dedicated to good teaching, clear thinking, natural expression, and loyalty to the empire,”^[2] who also admired the old republican institutions.^[3]   He analyzed three critical questions—why the orator must be a good man, what it means to be a good man, and what it is to be skilled at speaking. Continue reading “Lawyers as Common Good Servers” →

This is the second piece Ius & Iustitium is presenting in its symposium on Adrian Vermeule’s new book Common Good Constitutionalism. A general introduction to the symposium may be found here. Conor Casey is a Lecturer in Law, University of Liverpool School of Law & Social Justice.

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1. Common Good Constitutionalism and Bureaucracy

In a symposium hosted by Ius & Iustitium last year I noted that a core part of the intellectual project classical lawyers are engaged in has involved probing foundational questions about law and political authority: their purpose, justification, and how we should conceive of the proper relationship between the precepts of natural law and posited law. I went on to say that while these foundational questions remain of critical importance, if the revival of the classical tradition is to have any vibrancy or longevity, it must also probe how the basic precepts of the tradition are best made concrete under contemporary social, economic, and political conditions.

Professor Vermeule’s Common Good Constitutionalism is a work that masterfully tackles both tasks. The book has two main components. First comes the theoretical element—where Vermeule gives a rigorous but accessible articulation of the core precepts of the classical tradition: its emphasis on the common good as the lodestar of the constitutional order, the appropriate and rich relationship between lex and ius, and the inevitability of recourse to moral reasoning in hard cases.^[1] The latter parts of the book take these precepts and use them as a matrix through which to examine several areas of United States public law, including the place of the administrative state.

Executive departments and independent agencies acting under broad grants of statutory authority, notes Vermeule, play a critical role in setting and implementing consequential policies for the general welfare. The apparatus of the administrative state is key to the successful adaptation and adjustment of broad positive instruments to changing social, economic, and technological circumstances.^[2] For this reason the executive-led administrative state is, says Vermeule, in an important sense the living voice of a community’s law.^[3] Continue reading “An Administrative State for the Common Good“ →