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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 Brian Quigley, Research and Reference Librarian at NSU Shepard Broad College of Law at Nova Southeastern University in Davie, Florida. This post is adapted from a longer article available here.

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The classical legal tradition is ever-new. Its history is one of repeated displacement and revival. Stuart Banner identifies several persuasive reasons for the decline in the use of natural law reasoning that began in the late nineteenth century. These include a greater reliance on written constitutions, that law and religion were increasingly viewed as separate domains, a dramatic increase in the volume of legal publishing, and a feeling that the natural law lacked useful content.^[1] In the face of these headwinds it is easy to imagine the classical legal tradition becoming a matter solely of historical, rather than practical, interest. Instead, the tradition has been subject to repeated revivals, first in the 1910s and early 1920s, and again—in more sustained fashion—in the 30s, 40s, and 50s as a response to the rise of totalitarianism and the horrors of the Second World War. While our legal culture has changed dramatically in the intervening decades, interest in the classical legal tradition has never fully receded and may be in the early stages of widespread resurgence.

Continue reading “Environmental Law and the Classical Legal Tradition” →

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” →

Profs. William Baude and Stephen Sachs have published a review of Adrian Vermeule’s new book, Common Good Constitutionalism.  Ius & Iustitium is pleased to publish Vermeule’s response as a coda to our symposium on this work.

The Editors

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Adrian Vermeule^[1]

In a recent and illuminating paper,^[2] Emad Atiq (a legal philosopher) and Jud Mathews diagnosed what they called a “jurisprudential turn” in public law scholarship, and argued that this turn amounted to a poorly theorized attempt to rule in certain approaches to public law theory, and rule out other approaches, on highly contestable grounds, by a kind of unwarranted conceptual fiat. One of the central examples Atiq and Mathews used to illustrate this critique is the work of William Baude and Stephen Sachs.^[3] Baude and Sachs confidently imagine that their particular, highly idiosyncratic versions of positivism and originalism provide the yardstick against which all public law theories should be measured. They present as unquestioned axioms of legality and legal interpretation in our legal order what are, in fact, highly controversial views, which do not correspond to or derive from any recognized version of positivism in jurisprudence. As Atiq and Mathews put it, “[Baude and Sachs] argue that an originalist approach to constitutional interpretation is a requirement of law, and that this fact follows from the correct first principles about law—roughly, the positivistic claims of H.L.A. Hart. In fact, it takes work to clarify the controversial variation on Hart’s theory that underwrites their defense of originalism. … Baude and Sachs’ originalist conclusions do not follow from standard versions of positivism defended by Hart, Raz, and Shapiro.”^[4] Continue reading “The Bourbons of Jurisprudence” →

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“ →

Ever since Adrian Vermeule published “Beyond Originalism” in The Atlantic in the spring of 2020, there has been considerable excitement about Vermeule’s argument that it is time for conservatives to abandon originalism in favor of a more robust approach to law and government. Vermeule’s book, Common Good Constitutionalism (Polity Press 2022), expands upon the argument of the original Atlantic essay and presents his case for a new conservative approach to the law. Over the course of the next week, Ius & Iustitium is pleased to present a special symposium on Common Good Constitutionalism.

Readers of Ius & Iustitium will be familiar with the elements of Vermeule’s argument, but Common Good Constitutionalism sets it forth with admirable force and clarity. It is also an excellent introductory work for an educated general audience, which may well be aware of the ongoing debates about Vermeule’s work and wishes to learn more about his position. And above all Common Good Constitutionalism is a thought-provoking work, pointing toward numerous avenues for further investigation and further discussion. The range of essays presented as part of this symposium shows just how broad the vistas opened by Common Good Constitutionalism are.

It is a lamentable fact that much of the discourse surrounding Common Good Constitutionalism has been driven by Vermeule’s critics. The valued employees of Conservatism, Inc. have hastened, for whatever reason, to haul out their shopworn critiques of not merely Vermeule’s work but also the entire thrust of the classical legal tradition from Aristotle to the day before yesterday. Yet Vermeule understands what his critics do not: the American left of 2022 is not the left of 1982. The ivory-tower crowd can descend from their faculty lounges and think-tank offices and do their best King Canute impressions, but the Marxist waves show no signs of retreating. Ronald Reagan will not save us now.

Happily, however, there are lawyers who are not so insulated from reality by that greenest of cushions. Ius & Iustitium is pleased to present a selection of essays about and inspired by Common Good Constitutionalism written by lawyers coming from the heart of the classical tradition. Michael Foran writes about the book as a challenge to the the conventional wisdom of constitutional theory. Conor Casey writes on the place of the administrative state under common good constitutionalism. Aníbal Sabater writes on Quintilian’s presentation of the natural lawyer as the “good man skilled in speaking.”  Masurius Sabinus writes on the book from the vantage point of a recent law school graduate—an important perspective given the book’s enthusiastic reception amongst law students and young lawyers.  And Jacob Neu offers an all-too-often-overlooked perspective: that of the practitioner. Finally, Adrian Vermeule will respond to the authors of the essays presented here, and there will be a concluding panel discussion of the book and symposium essays via Zoom.

Common Good Constitutionalism has generated unusual excitement, perhaps unheard-of excitement for a work of jurisprudence. The audience of enthusiastic students and young professionals at the book’s recent launch at the National Press Club demonstrates that there is deep interest in Vermeule’s ideas. It is our hope that this symposium will present further opportunities for discussion and debate, above all from those committed to the classical legal tradition.

The Editors