Category: Constitutional Law

I understand altogether the desire of certain originalists to elevate their jurisprudential preferences to the sphere of morality. It is one thing when conservative donors want originalism to be right; it is another thing when God wants originalism to be right. Likewise, the moral dimension has certain charms when deployed against critics of originalism. Today, criticism of originalism must be treated in fundamentally academic ways: through the marshaling of evidence and argument. If originalism can be lacquered to a moral shine, then one may dispense altogether with the laborious work of answering one’s critics. To oppose originalism is simply to be immoral, and sin does not require the same work. For example, no one feels the need to argue against the sin of Onan; condemn, deplore, rebuke—but not argue. 

Heretofore the Church has been unwilling to make a dogmatic proclamation in favor of the originalists—the Munificentissimus Deus template no doubt having been mislaid in the shuffle of Predicate Evangelium—leaving them to their own devices. Catholic University of America law professor Joel Alicea is the latest moralist of the originalists who has attempted to supply the missing condemnation, writing a paper that soon will be published in the law review of the second-oldest law school in Indiana. Already the professional originalists have found not merely a moralist but a true champion. Professor Alicea’s essay has been featured prominently by such publications as National Review. This, too, is understandable. Adrian Vermeule has been all too troublesome for the professional originalists (and, one suspects, their donors have had awkward questions about the younger generations). Professor Alicea finds a moral basis for originalism. At last, to the sin of Onan, the originalists may add the sin of Vermeule. At long last, they may condemn, deplore, and rebuke—but not argue.

Continue reading “Scissors, Paste, and Aquinas” →

Out today in the New York Times is an essay published with a view to the upcoming release of my new book, Common Good Constitutionalism, published by Polity Books. (The essay started as an adaptation from the book, but isn’t really anymore, although of course the broad lines of argument are similar).

An excerpt from the essay:

What’s missing from our law today is an emphasis on the common good, a concept that from the founding era onward was central to the American legal tradition, embodied in the references to the “general welfare” in both the preamble to the Constitution and its text. The classical legal tradition, the mainstream of the Western legal tradition until the 20th century, holds that laws should be interpreted in light of the legitimate aim of government, which is the flourishing of the community as a community. Classical constitutionalism holds that our political community can succeed only as a whole, rather than as a collection of warring interests, competing ideologies and isolated individuals — the underlying logic of modern jurisprudence. The aim of constitutional government and legal interpretation should be to promote the classical ideals of peace, justice and abundance.

Continue reading “Reviving the Classical Constitution” →

The oral arguments in Dobbs v. Jackson Women’s Health have been held and the cause taken under advisement. If the past practice of the Supreme Court is any indication, one morning in late June 2022, a little after 10 AM, the Supreme Court will issue a decision. Pro-life advocates and abortion supporters have been poring over the tea leaves from the oral argument pretty much nonstop since Chief Justice Roberts gaveled them to a close on December 1. And soon, one suspects, the incessant drip of leaks from One First Street will begin—if it has not begun already.

Conservative commentators have decided that originalism itself hangs in the balance. If the Supreme Court does not take the opportunity presented by Dobbs to overrule Roe and Casey, that’s the end of originalism. Ed Whelan, the reliable fixture of the judicial wing of Conservatism, Inc., thinks that there will be much to answer for if that happens. And Joel Alicea, a law professor at Catholic University of America, has gone so far as to say that the Supreme Court’s decision in Dobbs is all that stands between originalism and a future dominated by Adrian Vermeule.

Continue reading “Little Giant Constitutionalism” →

On the eve of what may well be its biggest victory, there is a palpable sense of anxiety within the conservative legal movement. This is not merely anxiety that they might not win the actual case. It is an anxiety that if they do not, they will cease to matter and will be replaced by a newer (yet older) jurisprudence: This jurisprudence is, of course, simply the classical legal tradition, or “common good constitutionalism” as it is now called. Joel Alicea recently observed, a defeat here would be “crisis inducing” for originalism. A wag of Marxist sensibilities might say that a specter is haunting originalism—the specter of the classical legal tradition, of the common good. But only one power of originalism can exorcise it: the power at One First Street. The cause of the originalists’ anxiety is all too clear.

This is their fear if the conservative justices do not deliver in Dobbs. But what about the other outcomes? What happens if Dobbs comes down as a resounding endorsement for the main-line view of the conservative legal movement—that is, what if Dobbs explicitly overturns Roe and declares that as the constitution is silent on the question of abortion it is therefore a matter for the states? Make no mistake—Roe and Casey are disastrous decisions that should be overturned immediately. And it may be, given the choice of options available today, that a straight overturning of Roe and Casey is as good a victory as we can get. Such a reversal would save many lives which would otherwise be lost to abortion, and would be a historic victory well worth celebrating. Nevertheless, a victory in Dobbs on such terms, however much it is a consummation devoutly to be wished, will not protect originalism from its common good critics, and this for two reasons: one pragmatic and one principled.

Continue reading “The End of Originalism” →

A few brief thoughts in response to this interesting post on the Dobbs case by my esteemed colleague Steve Sachs. (I say nothing about Steve’s broader body of work, apart from the post). Steve writes that a failure to overturn Roe v. Wade would be an “extraordinary black mark for the conservative legal movement,” but would in no way damage originalism as such. After all, “[p]eople can call themselves ‘originalists’ and still be wrong about the original Constitution, just as they can call themselves ‘historians’ and still be wrong about history.” On Steve’s view, cited in the post, originalism is a standard that defines the rightness of right answers, not a decision procedure, let alone a foolproof decision procedure, for identifying those answers. It follows that originalism is untouched by any given misapplication of the standard, or even a long series of misapplications. “What kind of views of the Constitution do you hold, if you’d go look for new ones based on what some robe-wearing politician-approved bureaucrats say?… If you think originalism requires overturning Roe, and if it turns out that the Court’s self-described originalists still won’t do it, why conclude that originalism is lousy, and not that the Justices you’re mad at are lousy originalists?”

Continue reading “Gnostic Constitutional Theory” →

This is the third piece of the symposium Ius & Iustitium is presenting on the classical legal tradition and the common good. A general introduction to the symposium can be found here. Rachael Walsh is an assistant professor in the School of Law, Trinity College Dublin.

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Introduction

Property rights – whether guaranteed through private law or constitutional guarantees, or both – provide an illuminating example of individual rights that are imbued with common good-oriented limitations.  In the property rights context, the common good is implicated from the ground up. As Eric Freyfogle puts it, ‘[p]roperty rights are sanctioned and supported within communities because community members collectively decide or sense, in one way or another, that a private-property regime will benefit them.’ Property rights both contribute to, and are constrained by, the broader aim of securing the common good. Restrictions on the exercise of property rights are capable of both enhancing or impeding the realisation of that aim. 

Accordingly, the justification and limits of property rights are inevitably intertwined with evolving debates within communities about how best to achieve the common good. A clear understanding of property’s dual relationship with the common good – as both a tool for securing the common good and a potential impediment to progressive change – is of crucial significance as communities attempt to tackle complex problems that may require restrictions to be imposed on the exercise of property rights. For example, ensuring access to safe and secure housing for all and responding to climate change may require responses that limit property rights. A lack of attention to property’s common good dimensions could impede the development and implementation of effective policy responses to these pressing social challenges.

Continue reading “Property and the Common Good – Reviving Old Debates” →

This is the first piece of the symposium Ius & Iustitium is presenting on the classical legal tradition and the common good. A general introduction to the symposium can be found here. Conor Casey is a Lecturer in Law, University of Liverpool School of Law & Social Justice. Adrian Vermeule is the Ralph Tyler Jr. Professor of Constitutional Law, Harvard Law School. Some of the text in this post is adapted from Vermeule’s forthcoming book Common Good Constitutionalism: Recovering the Classical Legal Tradition (Polity Books).  

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A specter is haunting constitutional theory—the specter of the common good. The hallmark of the classical legal tradition is that law, to be law, must be rationally ordered to the common good of the political community. We argue, as do others, that the classical legal tradition be explicitly revived, adapted, and readopted as the intellectual underpinning upon which officials and jurists understand the purpose and ends of political authority, law, and Constitutions. The foundation and rapid success of legal theory blogs like Ius & Iustitium, and research projects like the Common Good Project based at Oxford University, are testament to renewed interest in these questions.

Among both conservative “originalists” and progressive living-constitutionalists, considerable alarm has been voiced in response to such ideas. In April 2020, one of us published a short essay critiquing the dominance of originalist and progressive approaches to law and constitutional interpretation in contemporary legal thought, and calling for an embrace of ‘common-good constitutionalism’. It is fair to say the essay sparked heated debate and a rapidly growing response literature—some sympathetic (including a forthcoming piece by the other present author) but others hostile. In a rare joint-defense alliance, both originalist-libertarians and progressives condemned the idea as “dangerous.”

In this post, we suggest that several of the most common critiques of the revival of the classical tradition are based on serious misconceptions and tendentious, question-begging claims, especially for the superiority of originalism. When these misconceptions and circular claims are widespread in originalist or progressive circles, we call them “myths.” Disagreement about the classical legal tradition and its relationship to constitutionalism should, at a minimum, be grounded in a sound understanding of the concepts at play. Conjuring fictional intellectual ghosts to exorcise may be thrilling for the conjurer, but entirely useless to scholarship. Continue reading “Myths of Common-Good Constitutionalism” →