Category: Constitutional Law

Magín Ferrer and the Fundamental Law of the Spanish Monarchy

Rafael de Arízaga

Ernest Renan (author of a blasphemous Life of Jesus) once quipped that “hereditary monarchy is a political conception so profound that it is not within the reach of every intelligence to comprehend it.” Indeed, the doctrine of Christian monarchy was the crown jewel of classical public law. In order to introduce our readers to it, Ius & Iustitium presents here a translation of an excerpt from Fr. Magín Ferrer, O. de M.’s Fundamental Laws of the Spanish Monarchy (1843). It is a lucid and brief exposition of this theory from the pen of one of its great exponents.

Introduction

Magín Ferrer (1792-1853), a friar of the Royal and Military Order of Our Lady of Mercy, was one of the early writers—both doctor and pamphleteer—of the Carlist cause, the longest-living Catholic counter-revolutionary and integralist movement of the past two centuries.1 Carlism traces its origins to the break in 1833 of the Spanish royal house, when the death of Ferdinand VII pitted two lines, the agnate and the feminine, against each other.  The former was centered on the late King’s brother, the infante Don Carlos María Isidro (King Charles V), whose rights were founded on the old laws of the realm, and the latter on the infanta Isabel (called Isabel II), the King’s daughter, and on her mother, María Cristina of the Two Sicilies.  The followers of Don Carlos, Carlists, were the collection of anti-liberal, traditional forces of Spain, enemies of both the liberalism of the Cortes of Cádiz of 1812 and of the French-style absolutism of some reactionaries.  They traced their intellectual and moral roots back to the principles of the ancient Catholic Monarchy.  The followers of Isabel, the Isabelinos (or Cristinos, for her cunning mother), were their opponents: the forces of Spanish liberalism and their “conservative” enablers.

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Conflict of Laws and the Regulation of Public Health

Gladden Pappin

In recent months religious believers in parts of the United States as well as western Europe have come to sense that public health regulations are being uniquely turned against them. In a Thanksgiving gift to religious believers in New York, late Wednesday evening the Supreme Court granted the request of the Diocese of Brooklyn (alongside a group representing Haredi Orthodox Jews) for injunctive relief from an executive order restricting occupancy at religious services to ten persons in COVID-19 “red zones” and twenty-five persons in “orange zones.” Catholics in France have not been so lucky, and there a national restriction limits religious services to thirty persons, even in France’s greatest cathedral churches. In both cases, governments claim to be fully committed to upholding liberty of religion as well as public interest writ large yet reach divergent conclusions.

This divergence points to a difficulty in one of the key concepts underlying this year’s restrictions on public activities—namely that of public order, which this year has taken the form of regulations made in the name of public health. In normal times, public order is a background condition assumed for the sake of going about the rest of one’s business. When the local fire department inspects a church building and concludes that four hundred people can safely fit within it, no one, least of all church authorities, bats an eye. In the church–state boundary dispute currently before us, however, religious congregations have faced severe adverse restrictions on their activities. And while Americans may be grateful that religious liberty jurisprudence worked in our favor this time, the same considerations—balancing public health and the demands of religious liberty—led to an adverse outcome in France, and one against which there is no appeal.

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Common-Good Constitutionalism and the “Ius Constitutionale Commune” in Latin America

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Ius & Iustitium is pleased to present this guest post by José Ignacio Hernández G. Professor Hernández is professor of administrative law at “Andrés Bello” Catholic University and Central University, Venezuela, invited professor at Castillo-La Mancha University, Spain, and a fellow of the Growth Lab at Harvard Kennedy School.

Originalism, the dominant mode of legal interpretation in American constitutional law, posits that the interpretation of the U.S. Constitution must be according to its “original” public meaning, that is, the meaning as it was in 1789. In an article published in The Atlantic earlier this year, Adrian Vermeule proposes a different methodology, based on the common good, which proposes that the Constitution be interpreted in accordance with the classical legal tradition, with the final goal of promoting common goods. In other words, instead of the text, the polestar of common-good constitutionalism is purposive ordering to certain social ends. According to Vermeule, common-good constitutionalism draws “upon an immemorial tradition that includes, in addition to positive law, sources such as the ius gentium—the law of nations or the “general law” common to all civilized legal systems—and principles of objective natural morality, including legal morality in the sense used by the American legal theorist Lon Fuller: the inner logic that the activity of law should follow in order to function well as law.” 

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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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DACA and Leadership

Pat Smith

In Department of Homeland Security v. Regents of the University of California, 591 U.S. ____ (2020), Chief Justice John Roberts struck down the actions of the Department of Homeland Security revoking the prior administrative actions popularly known as “DACA” (“Deferred Action  for Childhood Arrivals”). The DACA program, established in 2012 and expanded in 2014, allows individuals who came to the United States illegally as children to defer their deportation and, having done so, regularize their immigration status. The program came to include access to benefits. Shortly after President Trump took office in 2017, the Department of Homeland Security rescinded its DACA orders. The Supreme Court struck down these rescissions, not as exceeding the government’s power, but as failing to comply perfectly with the Administrative Procedure Act.

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Fidelity and Faithfulness

Adrian Vermeule

A brief look at the chasm separating Chiafalo v. Washington‘s originalist interpretation of and the Founders’ intent regarding the Electoral College.

In Chiafalo v. Washington, the Supreme Court ruled today by a 7-2 vote that, in the light of “our whole experience as a Nation,” States may subject “faithless electors” — members of the Electoral College who vote for a candidate other than the one to whom they are pledged — to statutory penalties such as a monetary fine. The Framers may have expected electors to make independent judgments, but, alas! “[w]hether by choice or accident, the Framers did not reduce their thoughts about electors’ discretion to the printed page.” And “established practice,” developed since the 19th century, authorizes States to reduce electors to a pass-through mechanism. As early as 1864, the English barrister J.F. Stephen had observed acidly that “the election of the President by electors chosen by the people at large was supposed to be a security for the appointment of men of high character and ability. The security turned out to be worthless, inasmuch as for many years past, the electors have always been so completely pledged before their election that they might as well be dispensed with altogether.”

Of course “faithlessness” is ambiguous here; fidelity to the State-enforced pledge might be seen as infidelity to the original conception of the Electoral College itself, which as Stephen noted was intended by its creators and explained to the ratifiers as an independent body of notables deliberating in the public interest. Indeed, the whole line of development that culminates in Chiafalo would certainly startle the members of the Convention. As Max Farrand said of the Electoral College scheme in 1913, “of all things done in the convention the members seemed to have been prouder of that than of any other, and they seemed to regard it as having solved the problem for any country of how to choose a chief magistrate.”

If originalism is “our law,” it is apparently so in some very special, epicyclical sense that does not bar the Nation’s developing norms and traditions from so “informing” the interpretation of the written law as to essentially reverse the Framers’ publicly stated expectations about a central mechanism of the constitutional plan. One may say all sort of things to square such a result with originalism — heroic work can be and has been done with concepts like “construction” and “liquidation,” and the Court gestures briefly at the latter phrase — but the sheer amount of work one has to do merely raises questions about the value of the originalist enterprise itself, just as one might question the value of a car that must constantly be repaired. In a world in which post hoc developments can undo what was, in any rationally purposive sense, thought to be a linchpin of the constitutional plan, it is at best unclear what the force of calling oneself an “originalist” really is, or why anyone should care.

Adrian Vermeule

Common-Good Constitutionalism: Collected Links

Adrian Vermeule

Common-Good Constitutionalism: Collected Links

This post collects all my work to date on “common-good constitutionalism,” including both online articles and blog posts. (Thanks to the editors of Mirror of Justice for permission to cross-post the links that appeared there first).

The entries are arranged, not in chronological order, but in order of importance to the project (in my own view). I will update this post occasionally as new work appears.

(1) “Common-Good Constitutionalism”
https://www.theatlantic.com/ideas/archive/2020/03/common-good-constitutionalism/609037/

(2) “Common-Good Constitutionalism: A Model Opinion”
http://iusetiustitium.com/2020/06/17/common-good-constitutionalism-a-model-opinion/

(3) “Deference and the Common Good”
https://mirrorofjustice.blogs.com/mirrorofjustice/2020/05/a-confusion-about-deference.html

(4) “Abuses of Power”
https://mirrorofjustice.blogs.com/mirrorofjustice/2020/04/abuses-of-power.html

(5) “On ‘Common-Good Originalism’”
https://mirrorofjustice.blogs.com/mirrorofjustice/2020/05/common-good-originalism.html

(6) “Interview on Common-Good Constitutionalism (English Translation)”
https://mirrorofjustice.blogs.com/mirrorofjustice/2020/04/common-good-constitutionalism-interview-english-translation.html

(7) “A Series of Unfortunate Events”
https://mirrorofjustice.blogs.com/mirrorofjustice/2020/04/a-series-of-unfortunate-events.html

(8) “The Guardian of Life”
https://mirrorofjustice.blogs.com/mirrorofjustice/2020/04/the-guardian-of-life.html

(9) “Bureaucracy and Mystery”
https://mirrorofjustice.blogs.com/mirrorofjustice/2019/03/bureaucracy-and-mystery-.html

(10) “Natural Law, Welfare Economics, and Administrative Law: A Comment on Helmholz”
https://mirrorofjustice.blogs.com/mirrorofjustice/2017/05/natural-law-welfare-economics-and-adminstrative-law-comments-on-helmholz.html

Adrian Vermeule

Common-Good Constitutionalism: A Model Opinion

Adrian Vermeule2 Comments

One of the strangest reactions to Common-Good Constitutionalism was the view, or rather assumption, that it proposed some sort of alien irruption into our law. Such an assumption could only be made out of ignorance of the history of American public law, one in which the current highly libertarian state of much current doctrine—an anomaly in historical perspective—is falsely projected backwards in time, after the fashion of invented traditions. In fact, as I have mentioned elsewhere, the common good has a much longer and more impressive pedigree within our law than does originalism itself; the latter is a modern movement that has attempted, unconvincingly, to inscribe itself in the past. This is especially true of originalism’s current form, essentially libertarianism in sheep’s clothing. (Originalism and libertarianism are analytically different, but it has suited modern libertarians, for contingent tactical and rhetorical reasons, to dress in originalist garb — an uneasy fit, given that the founding era was far from libertarian on any number of dimensions). Continue reading “Common-Good Constitutionalism: A Model Opinion” →