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Common-Good Constitutionalism: Lessons from the Irish Constitution

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Ius & Iustitium is happy to present this guest post by Conor Casey. Mr. Casey is a Max Weber Fellow, European University Institute.

Fascination with American culture tends to manifest in similar ways in many countries: conspicuous consumption of Hollywood and Silicon Valley’s latest outputs, keen interest in the op-eds of its leading media outlets, and avid following of the pageantry and personalities of apex federal politics.

This fascination also finds expression in the close interest paid by foreign lawyers to the ebb and flow of long-running battles over the United States’ 231-year-old Constitution and its interpretation, an interest which often metastasizes into influence. In Ireland, for one, a very clear line can be drawn between the activism of the Warren-era Supreme Court and how it inspired leading judges of the Irish Supreme Court to consciously increase their engagement and experimentation with the 1937 Constitution. This fascination with all things American ensures renewed that debate among self-identified legal and political conservatives—about the best method to interpret the Constitution—will be intently followed by public lawyers beyond its borders.

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The Better Tool: Beneficial Utility in Patent Law

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Ius et Iustitium is happy to present this guest post by Jake Neu. This is the second and final post in a series on patent law and the common good. The first can be found here. Mr. Neu is a partner at Bradley Arant Boult Cummings LLP.

When a craftsman loses a tool, he can improvise in the moment to get the work done. For example, a man without a screwdriver can use a butter knife. But the knife cannot fully compensate for the lost screwdriver; it is not sized to the slot on the screw head, and the rounded knife point slips from the slot. The general need that prompted the invention of a screwdriver remains, and substituting a knife is just a half-measure until a screwdriver can be found.

In my first post, “The Common Good in Patent Law,” I explained how U.S. patent law had a historical doctrine known as beneficial utility, which held that patents should be denied to inventions that are “frivolous or injurious to the well-being, good policy, or sound morals of society,” that is, inventions not directed to the common good of all. Beginning in 1960, the Supreme Court and the Court of Appeals for the Federal Circuit (which hears all patent appeals) excised beneficial utility from the body of patent law.

This second post provides a case study in what happens when the courts remove the common good from their toolkit. A recent quartet of Supreme Court cases involving the issue of patentable subject matter demonstrates that the need that generated beneficial utility—concerns about awarding patents to inventions that inhibit the common good—remains as strong as ever. But to deal with these concerns, the Supreme Court finds itself relying on patentable subject matter (PSM) jurisprudence, trying to create judge-made, value-neutral exceptions to what is otherwise patentable. This is like using a butter knife to drive screws—it might work in a pinch, but it is not the right tool. The Court should pick up the tool it discarded in 1960, beneficial utility, to address questions of public policy when considering granting or invalidating patents.

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Against Judicial Dyarchy

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Ius & Iustitium is happy to present this guest post by Jamie McGowan. Jamie McGowan is a postgraduate researcher in Constitutional Law at the University of Glasgow.

The recent debate about originalism in the US has triggered a lot of conversation about judicial deference. Adrian Vermeule recently clarified that the position of common good constitutionalism is that legislators of every kind ought to consider the common good and natural law when making legislative decisions. He rightly noted, however, that a very different question arises concerning the “institutional allocation” of that legislative power. Given the recent Bostock decision in the US, the question that inevitably enters the conservative legal debate is whether it is wise to allocate so much legislative power in the judiciary. In civil law countries, the judiciary deals mostly in the particularia of individual cases, determining moral right in its context, without establishing legal precedent. In most modern common law countries, however, an incredible amount of binding legislative power is bestowed upon judges, to the extent that the judiciary becomes a sort of supra-legislature. In classical legal theory, where law carries a telos of upholding the common good, the pertinent question is whether this judicial supremacy is friend or foe to the primacy of the common good and, by implication, the natural law.

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Ius Gentium and Tribal Sovereignty

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Ius & Iustitium is happy to present this guest post by Dr. Jonathan Askonas. Dr. Askonas is an assistant professor of politics at the Catholic University of America and a Fellow at the Center for the Study of Statesmanship.

Last week, the Supreme Court issued a stunning decision in favor of tribal sovereignty in McGirt v. Oklahoma. The case turned on the question of whether the Creek reservation was ever disestablished by Congress, and therefore whether Creek sovereignty was extinguished in favor of the State of Oklahoma. Most of the arguments in the opinion are over whether Congress’s various actions diminishing or infringing on the original rights granted to the Creek were sufficient to count for disestablishment. But underlying the dissenting opinion (that Congress had disestablished the Creek reservation) is a fatal flaw: the collapsing of the distinction between imperium and dominium that is essential to the ius gentium and that is explicitly incorporated into American constitutional law on this very issue.

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Bostock’s hidden trap

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Ius & Iustitium is happy to present this guest post by Gregory Caridi. Mr. Caridi, a civil and canon lawyer, is chancellor for the Diocese of Dallas.

While most conservative commentary on the Bostock decision has focused on the possibly severe ramifications to religious liberty, a much more serious implication lies buried in the opinion. Justice Gorsuch writes:

We are also deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution; that guarantee lies at the heart of our pluralistic society. But worries about how Title VII may intersect with religious liberties are nothing new; they even predate the statute’s passage. As a result of its deliberations in adopting the law, Congress included an express statutory exception for religious organizations…This Court has also recognized that the First Amendment can bar the application of employment discrimination laws “to claims concerning the employment relationship between a religious institution and its ministers.” … And Congress has gone a step further yet in the Religious Freedom Restoration Act of 1993 (RFRA)…That statute prohibits the federal government from substantially burdening a person’s exercise of religion unless it demonstrates that doing so both furthers a compelling governmental interest and represents the least restrictive means of furthering that interest. Because RFRA operates as a kind of super statute, displacing the normal operation of other federal laws, it might supersede Title VII’s commands in appropriate cases. 

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The Common Good in Patent Law

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Ius et Iustitium is happy to present this guest post by Jake Neu. Mr. Neu is a partner at Bradley Arant Boult Cummings, LLP. This is part one of a two part series. The second part is here.

Adrian Vermeule’s opening post at Ius & Iustitium began with the assertion that “the common good has a much longer and more impressive pedigree within our law than does originalism itself.” He calls this an “obviously large claim[], which I cannot fully substantiate here.” But if Vermeule’s claim is true, then common good jurisprudence should be visible at or just underneath the surface of various fields of American law, even those that do not seem to admit of common good considerations at first glance. One such example to help pay down Vermeule’s debt is patent law.

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June Medical Roundup

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Yesterday, Ius & Iustitium presented a collection of short pieces about the Supreme Court’s decision in June Medical Services, L.L.C. v. Russo. With at least one more round of major decisions later this morning (and the possibility of more decision days), we thought it was wise (and convenient) to gather the pieces on June Medical in one place. A link to each piece is embedded in the author’s name.

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June Medical and the Bull in the Arena of Liberal Neutrality

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Editor’s Note: This piece is part of the Ius & Iustitium series on the Supreme Court’s 5-4 decision in June Medical Services, L.L.C. v. Russo, striking down Louisiana’s abortion restrictions. The contributors to Ius & Iustitium will be offering short essays focusing on different aspects of the Court’s decision. A post collecting the essays will be published at the end of the series.

In Spanish bullfighting, before the bull faces off against the sword-wielding torero, he is speared with lances by horse-mounted picadores and stabbed with banderillas. In the final stage of the bullfight, the severely bloodied bull remains defiant and confident that he still has a chance against the torero.  But while a bull might occasionally succeed in goring an unlucky matador, the ultimate outcome of the bullfight is predetermined. The bull will inevitably leave the match as rabo de toro. It’s not a fair fight. 

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