The book launch for Common Good Constitutionalism took place last Thursday evening at the National Press Club. The run of show went as follows: (1) an introduction by Sohrab Ahmari; (2) my talk; (3) in-person responses from Judge Paul Matey, Jeff Wall, and Professor Patrick Deneen; (4) on video, a response from Judge Amul Thapar, who was unfortunately unable to attend in person; and (5) some thoughts by me in reply to each of the respondents. Unfortunately the program ran a bit long, so time did not permit questions from the audience. The program as a whole featured a genuine diversity of views, with Jeff Wall taking a rather libertarian perspective and Judge Thapar an originalist one.
This post includes, in order: (1) my written talk, which as inevitably occurs, differs slightly from the actual delivery; (2) an audio recording of the whole proceeding (barring a few words cut off at the beginning of Sohrab Ahmari’s introduction); (3) Judge Thapar’s video, posted separately because the audio quality of the recording of the whole may make it difficult for the listener to hear his remarks; (4) a written version of my reply to Judge Thapar in particular, again differing slightly from the actual delivery, and posted separately to make the discussion of Aquinas more accessible.
Please bear in mind that this was not a strictly academic event. These materials are informal and are posted in the hopes of advancing the debate. Enjoy!
1. My written talk:
Well thank you so much Sohrab, and thanks to all of you for coming. I’d like to extend special acknowledgements to my family, to our special commentators and guests—Judge Matey, Jeff Wall, Professor Deneen, and Judge Thapar—and also to those who traveled a long way to get here, particularly Justice April Farris, who came from Texas, and Chief Justice Carlos Muniz from Florida. And last but not least, thanks to the friends and colleagues who have organized this in conjunction with the Bonum Commune Foundation.
You may or may not know that right now, elsewhere in D.C., the big annual libertarian gala is getting underway. On one view of liberty, you were free to choose to attend either. On the true and correct view of liberty, however, liberty is freedom to do what one ought to do. And what one ought to do is to attend an evening on the common good. I congratulate you all for recognizing where your duty lies.
I’ll basically try to do three things in this brief talk: first, to sketch what common good constitutionalism is in positive terms. Second, to explain what it isn’t, dispelling a few myths about it which you may have encountered if you’ve fallen into bad company. Third, I will end with some thoughts about why there has been a resurgence of interest in the classical legal tradition, especially, in my experience, among younger lawyers—law clerks and law students in particular.
Let me start with some background and context. Just about two years ago the Atlantic magazine approached me and said “we know you’re not an originalist, so do you want to talk about your views on constitutional interpretation? But we can only give you 1500 words.” Constitutional theory isn’t my first love, despite what my chair title fraudulently claims—my real passion is administrative law. (Professor Sunstein understands me here). But I agreed to put down a few thoughts, not realizing anything would come of it. Talk about being behind a veil of ignorance.
So I sketched out some points I had been reading about and thinking about for some time, which was to say that American constitutional law had lost sight of its classical legal heritage, which was also the way the founding generation thought about law. And that a revival of the classical legal heritage could begin to cure the ills that both legal progressivism and conservative legal originalism had inflicted on our legal system.
Well, to my surprise and amusement, the Internet blew up on me—during Lent no less, an appropriate penance no doubt. The outcry was deafening. Within less than 24 hours the Atlantic had also published two responses from a legal progressive and a libertarian, Garrett Epps and Randy Barnett, both saying in nearly identical terms that these ideas were “dangerous.”
Part of the uproar involved people complaining that my brief piece had not offered a total, comprehensive history and theory of constitutionalism. Hence I was forced to write a book and several follow-on pieces, some co-authored with an outstanding jurist from the University of Liverpool named Conor Casey, that at least expanded upon the original piece.
So let me explain the project a bit.
Common good constitutionalism aims to recover and revive the profound connections between the classical American legal tradition on the one hand, and on the other the classical Roman and Western legal tradition, the ius commune, of which the Anglo-American common law is best understood as a local variant. The book thus has both a general part and a particular part—a duality that is itself typical of the classical legal framework. It speaks both to general principles of common good constitutionalism and to the specific embodiment or determination of those principles in the American constitutional order. These two are detachable, in the sense that one can subscribe to the methodological framework without subscribing to my particular interpretations of American law.
Put another way, American legal theory suffers from a pervasive amnesia. Aside from the work of a few legal historians and other specialists, our law has all but lost the memory of its own origins and formative influences in the classical legal tradition. Both English and continental streams of the ius commune influenced Americans right from the beginning, throughout the nineteenth century and into the twentieth. I argue that this American embodiment of the classical tradition should become, once again, the matrix within which American judges read our Constitution, our statutes, and our administrative law. What we have forgotten is that the positive law based on the will of the civil lawmaker, while worthy of great respect in its sphere, is contained within a larger objective order of background legal principles and standing aims of civil government. It is thus rightly interpreted in accordance with those principles—especially in hard cases, in which legal texts are ambiguous, general, vague or conflicting.
If anything has a claim to capturing the “original understanding” of the Constitution, the classical legal tradition does. The classical law just is the original understanding. So-called “originalism” in its elaborated theoretical form is a product of the conservative legal movement’s particular political and rhetorical situation after World War II. Its underlying assumptions are essentially positivist and thus from the standpoint of the founding era anachronistic, indeed counter-originalist.
Of course a simple return to the particular rules of the classical tradition is neither desirable nor even possible. But the core theoretical insights and jurisprudential principles of that tradition can be adapted and translated into our world, so as to yield a better interpretation of the past and present of our operative constitutional order.
Those insights are scarcely so remote as to preclude recovery; in fact, they are close at hand, if obscured from our current vision. Key elements of the classical view of law remain vital within our law, even as legal theorists have ceased to defend or even recognize them. A law professor named Steven Smith missed this distinction in a recent piece. While our legal theory has lost sight of its own origins, it is no contradiction to say that in practice our law retains many classical elements. That’s indeed how amnesia works.
So what exactly does the classical legal tradition hold? The centerpiece of that tradition is that law should be seen as a reasoned ordering to the common good, an act of rational governance aimed to promote the good of citizens as members of a flourishing political community, and ultimately as members of the community of peoples and nations. All officials have a duty, and corresponding authority, to promote the common good—albeit, and this is crucial, in a manner consistent with the requirements of their particular roles. This classical conception embodies the best of our own tradition, the union of well-ordered reason with public authority.
Classical law takes enacted texts seriously, as products of the reasoned deliberation of public authorities who give specific content to the law where background legal principles need specification or leave relevant issues to discretionary choice. Where at all possible, classical law reads the law of a particular jurisdiction (the ius civile or “law of the city”) in light of the ius gentium (the law of nations or peoples) and the ius naturale (natural law), which the civil positive law is taken to make concrete or “determine” within reasonable boundaries. General background principles of law might, for example, say that, at some point, peace and order require that potential defendants should have repose from the risk of being sued. It would then be up to the civil law in such an instance to determine a specific statute of limitations and to resolve the many questions that flow from it.
This implies that the judges or other officials who interpret the meaning of law at the point of application are duty-bound to follow a kind of textualism, at least presumptively. But this is not the positivist form of textualism that simply equates law with enacted texts, as Justice Gorsuch did in the Bostock decision. Rather it is a different form of textualism justified on the ground that respect for the determinations of the public authority itself serves the common good.
Crucially, this view in turn yields a corollary: in hard cases, where the positive law is indeterminate, general, vague, or conflicting, enacted texts are always read against the backdrop of, and if at all possible in accord with, the broader legal background of general and traditional legal principles, natural law, and the law of nations. The classical law itself incorporates positive law and justifies the role of positive law, but rejects any commitment to positivism in a jurisprudential sense.
What then is the common good anyway? In brief, the common good is, for the temporal purposes of the constitutional lawyer, the flourishing and happiness of the political community. The common good is unitary and indivisible, capable of being shared without being diminished. A humble analogy might be the victory of a sports team, which is the victory of the team as such, over and above the victory of the individual players.
The common good is also the highest good of the individuals comprising the political community. No man is an island. As Aquinas memorably put it, “The individual good is impossible without the common good of the family, state, or kingdom. Hence Valerius Maximus says of the ancient Romans that ‘they would rather be poor in a rich empire than rich in a poor empire.’”
Perhaps a simple diagnosis of our ills in 2022 is that many Americans would, in contrast, rather be rich in a poor nation than be poor in a rich nation. Unfortunately this seemingly clever approach turns out to be self-defeating. Even the goods of individual and family life, we have re-discovered, cannot be enjoyed in a decaying and chaotic polity, even if we can afford to live in a gated community.
Thus the classical view is not at all that the common good is the good of the collective or aggregate, as opposed to that of individuals. Quite the contrary. The common good of happiness in a flourishing political community is ultimately for the sake of individuals, because a flourishing community is both the precondition for the goods of individual and family life, and the highest temporal good for individuals as such.
To give the common good more specific content, I look to the precepts of legal justice in the classical law: to live honorably, to harm no one, and to give each one what is due to him in justice. These underpin the classical account of the central goods at which constitutionalism should aim. These goods include, in a famous trinity, pax, iustitia, et copia — peace, justice, and abundance — which I extrapolate to modern conditions to include various forms of health, safety, and economic security. I also elicit from the tradition the key principles of solidarity and subsidiarity. Much more could be said here, but I have to be criminally brisk.
Now let me equally briskly dispel a couple of myths and misconceptions.
The common good is not “preferences” or “what I like” or “whatever the judge imposes at whim.” A tendentious but frequently heard claim is that the only alternative to positive textual rules is unstructured “discretion” that embodies subjective preferences. But this is a deeply impoverished legal ontology. Until very recently the Western legal tradition has always supposed that other binding sources of law exist with ascertainable content, and that, when necessary, those sources can and should be drawn upon to determine legal meaning. Yet those other sources are not drawn upon in an unstructured way, but according to the morality of roles, which includes presumptions of deference, respect for jurisdiction, and other devices for allocating authority.
Contrary to what someone may have told you, in the classical tradition, “rights” very much exist, but they are not defined in the essentially individualist, autonomy-based, and libertarian fashion familiar today. Instead rights are objective corollaries of justice, which is the constant aim of giving every man his due. In the classical tradition, both natural and positive rights are, in somewhat different ways, themselves included within law’s larger ordering to the common good. They need never be overridden in the name of the common good, for that ordering is built into the scope and point of rights from the beginning.
A few words now about the leading competitors to the classical tradition: The consequence of the amnesia I mentioned is that our public law now oscillates restlessly and unhappily between two dominant approaches, progressivism and originalism. In my view, despite their superficial enmity, these are both aspects or variants that flow from the same basic premises about law and political morality. Their apparent conflict is really a kind of duopoly. They are constitutional law’s equivalent of the two party system.
Since its modern inception in the 1960s and 1970s, originalism has been unable to free itself from—or usually even to acknowledge—the implicit normative assumptions and judgments needed to attribute rationality to legal texts, to determine the level of generality at which the meaning of texts should be read, to resolve ambiguities, or otherwise to make sense of their terms. Thus originalism is, in that sense, an illusion. Even putatively originalist decisions of the Supreme Court turn out to be richly interpretive and normative. They are shot through with implicit and explicit justification in light of claims about political morality. Indeed, I argue that no law can operate without some implicit or explicit vision of the good to which law is ordered. The only questions are whether we are transparent about that, and which account of the good our law will promote, pursue and endorse.
I’m just about done. Let me conclude with a few thoughts on why there has been a powerful revival of interest in the classical legal tradition—in my experience, especially pronounced among law students, law clerks and younger professionals. Perhaps the real reason is just the perpetual desire of the young to rise up against their elders, but I will explore some other possibilities.
One issue is the faltering of the alternatives. Originalism has fractured in interesting ways. At the academic level, there are now maybe a dozen increasingly recondite versions of the theory, including original meaning originalism, expected applications originalism, original methods originalism, original law originalism, originalism as a standard of correctness rather than a decision procedure, and on and on. Amid this rather chaotic welter of competing versions of the theory, the claim of originalism’s academic proponents to offer determinacy, as opposed to the supposed manipulability of any alternative, ring hollow.
So too, originalism has in a certain way been undone by its own political success. If we are all originalists now, then we are also all non-originalists now, for originalism gives no specific differentiation. Just ask famous self-described originalist judges like Justices Kagan and Jackson.
But I think the impetus behind the revival of classical law runs much deeper than the shortcomings of originalism. It really stems from the parlous state, not of law and legal theory, but of the larger polity. I suggest a kind of paradox: as a polity becomes increasingly disordered, increasingly remote from a flourishing commonwealth promoting peace, justice and abundance, the claims of the common good and indeed the natural law actually become more visible, more insistent, and less debatable. It is easy to be fashionably skeptical about the claims of the common good when the polity is more or less basically functional; the intellectuals can focus on edge cases and recondite exceptions, because the main tasks of civil governance are being taken care of in the central cases. But when the polity is in undeniable decay, when disparities of wealth and inequalities of educational opportunity are pervasive, when fentanyl has become the leading cause of death for adults between 18 and 45, when a million Americans die in an epidemic, when judges are harassed in their homes over cases they are currently deciding — in circumstances like these, it becomes ever more plausible that a flourishing polity is itself the highest good for individuals, and that there exist background principles of reasoned order that should themselves be part and parcel of our law. Just as absence makes the heart grow fonder, so too we perceive more keenly what our polity desperately lacks when we lack it. It is no accident, I think, that the last major revival of classical legal theory was just after the Second World War, when the idea that positive law does not exhaust the binding sources of law was vindicated at Nuremberg.
2. Recording of the whole event:
3. Judge Thapar Video:
4. Text of Reply to Judge Thapar:
Let me begin with Judge Thapar, given his specific invitation to respond. I want to thank the Judge for his thoughts, and for the irenic spirit in which they are offered. In the same spirit, I will say that I agree with them—as far as they go. But the problem is that Aquinas also adds a crucial qualification. Let me explain.
As I say in the book, the baseline classical presumption is respect for the ordinary meaning of text, and in most cases this will look much like it does now, because most cases are easy cases. Yet it is inevitable that hard cases will arise in which the positive law is not always completely determinate—it is ambiguous, or vague, or conflicting, or due to the limits of legislative foresight sweeps too broadly relative to powerful background principles of the common good, to which legislators and the legal system are equally committed. Thus Aquinas—just after the passages the Judge cites—goes on to say that the “observance according to the letter of the law” is defeasible, when in hard cases, the lawmaker has failed to foresee a case in which the letter of the law does not capture background principles of the common good that the lawmaker—in order to make law—must have had in view.
In such cases, Aquinas thinks, the interpreter authorized to make a dispensation from the letter of the law must judge according to those principles. Crucially, on the classical view, this does not amount to departing from the law as such, but only from the ambiguous or defective letter of the law; a judge is still doing law when interpreting an ambiguous, vague or overbroad statute in light of background principles. Hence the classical locution, which sounds strange to some moderns, that a case might fall within the letter of the law, yet not within the law itself. There is a separate question about who is the interpreter authorized to make such dispensations, under what conditions, but some such interpreter there must be; we are now already well beyond the baseline argument for textualism.
Judge Thapar also points to another passage in which Aquinas says that a judge possessed of private information about the facts of a particular criminal case must only judge in accordance with the evidence of public record. Judge Thapar takes this as an argument for a kind of formalism in the modern sense.
Here too, I think, Aquinas’ full view is quite otherwise. First of all, Aquinas is referring to what we would today call specific adjudicative fact, not law, and no one has ever suggested that judges should be allowed to rely on non-record information as to specific adjudicative facts.
More fundamentally, however, the issue Aquinas discusses here has nothing to do with legal formalism in the first place. That is because in the classical view, law is never a matter of private information. The natural law, for example, is in the classical view profoundly public. It is “written in the hearts of all men” and accessible to the reason of all. Thus elsewhere in the same passage Aquinas goes on to say precisely that what a judge knows “as a public person comes to him … through public laws, whether divine or human.” Thus interpreting the law, when necessary, to comport with supra-positive law is not to draw on private information at all; it is itself to exercise the judge’s legitimate public function.