Common-Good Constitutionalism: A Model Opinion

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).

These are obviously large claims, which I cannot fully substantiate here. Instead I will make a small down-payment on my debts by examining Justice Harlan’s dissenting opinion in Lochner v. New York (1905), set in the context of the Court’s economic due process caselaw after the adoption of the Fourteenth Amendment. It is a model opinion for common-good constitutionalism, a paradigm of the approach. And it draws upon a tradition of law that is both central to American constitutionalism and that itself centers on the common good, which functions in this tradition as a kind of master principle of public law.

If one simply searches for “common good” in the Supreme Court database in Westlaw, the 130 results immediately pick up the main line of the due process caselaw after the Civil War (and this is without looking at adjacent terms such as “general welfare” or “public interest.”). Among these are Munn v. Illinois (1877), upholding maximum rates for grain warehouses and elevators; Mugler v. Kansas (1887), in which Harlan wrote for the Court to uphold state regulation of the manufacture and sale of intoxicating liquors; Holden v. Hardy (1898), upholding an eight-hour maximum day for miners; and Jacobson v. Massachusetts (1905), another famous Harlan opinion, decided the same year as Lochner, that upheld a scheme of mandatory vaccination, and that has taken center stage in recent litigation arising from the pandemic. Along the way the Court upheld a surprising variety of regulatory and administrative measures; a cursory acquaintance with this caselaw is enough to dispel any notion that the administrative state is a twentieth-century creation. Although there were occasional decisions invalidating government action as entirely beyond the bounds of the defensible, the strong tendency of this body of law was to support capacious public authority to regulate property, economic activity and even personal liberty for public purposes.

This body of law used the concept of the common good to define the “police powers” of government, a term that has narrow connotations in 2020, but whose contemporary usage referred broadly to the power of government to promote the “health, safety and morals” of the people. (An infallible diagnostic symptom that a legal theorist is in the grip of an invented libertarian tradition is horror, or professed horror anyway, at the thought that promotion of public morality is an ordinary and indeed essential component of political rule). The “common good” or “general welfare” is what the exercise of police powers should aim for, as the cases say over and over again. The basic conception is purposive and teleological; the legitimacy of authority is defined in terms of the aims it pursues.

In the economic due process caselaw, the main application of police powers is to state governments, rather than the federal government. As David Currie observed, one effect of the police powers framework was to treat state governments as governments of defined powers akin to the federal government — an approach in some tension with the written Constitution. On the other hand, the police power framework hardly defined the powers of state governments in a rule-bound way. Rather it indicated a broad set of legitimate purposes for government action, and thereby created a loose-fitting garment allowing the exercise of broadly reasonable discretion by government to promote the common good over time, very much in line with Chief Justice Marshall’s capacious approach to the power of the federal government in McCulloch v. Maryland (1819). In this sense our law, developing over time, applied to all levels of government a unified framework ultimately drawn from the classical legal tradition.

I shall call this “the common-good framework.” An excellent summary comes from Harlan’s opinion in Mugler v. Kansas:

Nor can it be said that Government interferes with or impairs anyone’s constitutional rights of liberty or of property when it determines that the manufacture and sale of intoxicating drinks for general or individual use as a beverage are or may become hurtful to society, and constitute, therefore, a business in which no one may lawfully engage. Those rights are best secured in our Government by the observance upon the part of all of such regulations as are established by competent authority to promote the common good. No one may rightfully do that which the lawmaking power, upon reasonable grounds, declares to be prejudicial to the general welfare (my emphasis).

The main elements of the framework, as Harlan explains, are that (1) the public authority may act for the common good; (2) by making reasonable determinations about the means to promote its stated public purposes; and (3) when it does, judges must defer.

The second element draws upon the idea of “determination,” a central idea in the classical legal tradition (and plausibly the remote ancestor of deference in all sorts of forms familiar today, from Chevron deference to the “margin of appreciation” in human rights law). The natural law establishes the right, duty and authority of the ruling power, whatever form that power might take in a particular jurisdiction, to act through and by means of law, that is, by means of rational ordinances for the common good. What particular form those ordinances take is not itself, however, specified in detail by the natural law, at least in typical cases and so long as negative moral prohibitions are respected. Rather, general principles must be given further determinate content by positive civil lawmaking. There are typically multiple ways to determine the principles while remaining within the boundaries of the basic charge to act to promote the common good — the basis of public authority. Determination is especially important when principles of justice conflict and must be mutually accommodated or balanced, as when the community’s legitimate claims to protection from harm or immorality conflict with natural rights.

As for the third element, judicial deference, some think, oddly, that under common-good constitutionalism, the judiciary must itself apply its own entirely independent judgment of the common good, regardless of what public authorities think. But this is a mistake, a version of the fallacy of composition. Promotion of the common good is a duty incumbent upon all officials in the system, legislators and executive officers as well as judges, but as a logical matter it does not follow that each official or institution in the system, taken separately, must make unfettered judgments about the common good for itself; the political morality of the common good itself includes role morality and division of functions. How the Constitution should be interpreted and how judges should decide cases are not necessarily the same question. A system that conduces to promoting the common good overall may do so precisely because there is a division of roles across institutions, such that not every institution aims directly to promote the common good. The deferential framework for adjudication in the police-power caselaw supposes that judicial deference is itself conducive to the common good, because public authorities make better judgments of determination, within reasonable boundaries, than do courts.

The common-good framework flows from a straightforward account of the constitutional text and structure, including the Constitution’s express commitment to the “general welfare” and the tacit postulates of the constitutional plan, both as to the federal government and the states. More broadly it derives from the whole conception of the aims of government and of constitutionalism in the classical tradition — a conception widely shared by American lawyers until quite recently, in historical perspective. The common good was the ordinary and original framework of American public law right from the beginning. As Blackstone observed, natural liberty could be “so far restrained by human laws . . . as is necessary and expedient for the general advantage of the public.” Or, as a modern scholar of natural rights in the founding era puts it, “decisions about the public good … were left to the people and their representatives—not to judges.” And Blackstone emphasized the role of determinations, observing of municipal laws (another term for civil laws, as opposed to the laws of divine revelation, of nature, or of international society) that

sometimes, where the thing itself has its rise from the law of nature, the particular circumstances and mode of doing it become right or wrong, as the laws of the land shall direct. Thus, for instance, in civil duties; obedience to superiors is the doctrine of revealed as well as natural religion: but who those superiors shall be, and in what circumstances, or to what degrees they shall be obeyed, is the province of human laws to determine.

The capacious scope of public discretion to promote the common good is often neglected in discussions of the constitutional world of Lochner. In a conjunction of interest based on opposite motives, progressives and libertarians often portray that world as highly restrictive of governmental authority — progressives because they want to emphasize the need to break with the past, libertarians because they want to disguise as originalist and traditional their attempt to sharply restrict the ruling power of the state, an approach that is in fact innovative and modernist. The progressive and the libertarian are twins, mirror images of one another, despite their mutual enmity. They are, in fact, on the same side of the fault line that separates the constitutional common good from modernism. Hence their shared tendency to panicky, bewildered outrage at the thought that government might be charged with care for the moral welfare of the community. In contrast to these twin modernist approaches, the police power framework has firm roots in the classical legal tradition.

In Lochner, Justice Peckham’s opinion for a majority of five Justices invalidated a law that prohibited bakers from working more than sixty hours in a week or ten hours in a day. Peckham argued that the law interfered with individual liberty of contract, and that it could not be justified as a labor law because it would be paternalistic to override the free choice of the bakers, who were “in no sense wards of the state” — a view that overlooked inequalities of bargaining power, the social externalities created when people work themselves half to death, the problems of labor-side collective action that allow employers to play divide-and-conquer in labor markets, and, most simply, the numerous precedents before Lochner that allowed authorities to override individual choices. To mention only the period 1902-03, shortly before Lochner, Justices Brewer, Harlan and Holmes respectively had written for the Court to uphold prohibitions of prepayment to sailors of their own wages, speculation in grain futures and margin sales, all of which showed that public authorities may promote the common good by regulating the putatively free choices of market participants. As for justifying the law as a health measure, Peckham stated in brief and conclusory fashion that “the trade of a baker, in and of itself, is not an unhealthy one to that degree which would authorize the legislature to interfere” — an approach that evaded the only question relevant under the long-established doctrine, which was whether the legislature could reasonably find maximum hours regulation to be a useful means of protecting the bakers’ health.

The Lochner majority opinion was fundamentally a case of mala fides, of bad faith — an indisputable deviation from the settled framework of the caselaw, with its heavily deferential standard of review. It was easy for Harlan, in dissent, to show all this and to reassert (as he had written for the Court in Jacobson) that “there are manifold restraints to which every person is necessarily subject for the common good,” to be reasonably determined by public authorities. Harlan was clearminded both about the Court’s own limited role and about the need for an authoritative determination of the competing principles of health and liberty:

What is the true ground for the state to take between legitimate protection, by legislation, of the public health and liberty of contract is not a question easily solved, nor one in respect of which there is or can be absolute certainty…. What the precise facts are it may be difficult to say. It is enough for the determination of this case, and it is enough for this court to know, that the question is one about which there is room for debate and for an honest difference of opinion.

Harlan’s dissent was unanswerable and should have been the majority. It is pointless to try to show, as Peckham hinted obscurely and some libertarians have argued, that the legislature may have had “other motives” and that the law might be seen as “class legislation” intended to favor unionized bakeshops, rather than a measure to benefit the common good of the whole community. Although such efforts are unconvincing on their own terms, the main problem with them is that the longstanding common-good framework ruled out probing judicial scrutiny of facially plausible legislative justifications; the same arguments necessary to justify the Lochner majority would also entail that a dozen cases before Lochner were wrongly decided, including the trio of cases from 1902-03. As Currie, no progressive himself, observed with some asperity:

In light of the precedents it is not surprising that four Justices dissented …. Harlan, joined by White and Day, graphically demolished the Court’s unsubstantiated conclusion on the health question by documenting the dangers of constant physical exertion…. The Court made only the most perfunctory attempt to deal with precedent, and it was obvious that it was applying a far stricter level of scrutiny than it had applied in previous cases.

Lochner, then, was wrong the moment it was decided, not because of some paradigm shift after 1937.

But the reason Lochner was wrong, in Harlan’s view and in my own, is that it represented a betrayal, in bad faith, of the common-good framework. Justice Holmes’ more famous dissent pointed out the flagrant inconsistency between the majority opinion and the precedents, but also offered a categorically different approach that rejected the common-good framework itself, the framework that the majority purported to share with Harlan (although Peckham applied it in bad faith). In Holmes’ view, the Court ought to defer not to public authority, charged with care of the community and acting for the common good, but rather “the natural outcome of a dominant opinion” — meaning whatever opinion proves victorious via some mechanism, more or less “democratic,” for aggregating opinions. Lost here is the classical idea of a genuinely common good that transcends preference aggregation and that is entrusted to the care of the public authority. In contrast, then, to both Peckham’s tendentious majority and Holmes’ morally skeptical dissent, Harlan’s dissent kept the faith, applying the common-good framework with real integrity — with a fair-minded appreciation of the point and justification of the preceding caselaw, and with appreciation for the limits of the judicial role in an overall institutional system of common-good constitutionalism.

We can understand the methodology of Harlan’s opinion better by negative contrast. It is not originalism. Most of the background due process caselaw makes at most cursory reference to the founding era, and even then only for broad points about the traditional purposes of government. Harlan’s dissent contains no reference to the Framers or Founders, whether of 1789-1791 or of 1868, nor is there any mention of the “original public meaning” of the Constitution. Rather the basis for the dissent are legal principles reflected and explicated by caselaw over time. In that sense it is closer to “living-tree constitutionalism” or “common-law constitutionalism,” but it lacks the animating spirit of those approaches in their modern forms, which is a Whiggish faith that liberty and equality work their way ever more pure over time. Whig constitutionalism is also deeply reluctant to allow the point—unquestionable for millennia—that morality is obviously a sound basis for public lawmaking, indeed an unavoidable basis.

The closest thing in the modern literature to Harlan’s dissent and to the common-good framework generally are certain versions of Legal Process rational purposivism that recognize the importance of role divisions across institutions. Or, to say much the same thing, one might see the common-good framework as Dworkinism-plus-deference. In line with Dworkin’s law-as-integrity, combining “fit” and “justification,” the common-good framework attempts to “fit” the developing law while also providing justifications for that law in light of a political morality of the common good, understanding political morality to itself include a morality of institutional roles that commits primary competence for promoting the common good to political authorities. On this view, the coherence and integrity of law include arguments from political morality for deference to nonjudicial decisionmakers, within reasonable boundaries. Which is just to say that Dworkin reinvented a version of the classical legal tradition without knowing it, especially when towards the end of his career he categorized law itself a department of political morality, a framing that would have both Aquinas and the classical lawyers nodding in approval.

Against the backdrop of the classical legal tradition and its common-good framework, there are two distinct ways a judge can go wrong. One mistake, Peckham’s mistake, is arrogance. It is to assume that ascertaining the common good is entirely committed to the judgment of the courts, overlooking the legitimate scope for public authorities to determine (in the classical sense) the import, relationship and weight of competing principles, within reasonable boundaries. In the nature of things there is no metric for determining the boundaries of the reasonable, but a hallmark of maturity is the realization that the absence of such a metric is hardly a decisive objection. The classical tradition rests, in the end, on the overarching principle of bona fides, good faith. Where such good faith is systematically absent, the law may misfire, but the misfiring of the law will be the least of the polity’s problems.

The other mistake, Holmes’ mistake, is skepticism, which comes in two distinct forms. (These need not be combined, necessarily, but Holmes did suffer from both forms). The first is to be skeptical that there exists an objective common good that transcends human will. The natural tendency of this view is to identify the political good with whatever results from voting procedures that aggregate subjective preferences, and then, as parliamentary legal positivists like Bentham and Austin argued, to identify law with the willed command that emerges from that aggregation procedure, or from the commands of representatives installed by the aggregation procedure, and so on. It is familiar that this skeptical form of positivism underlies much of Holmes’ jurisprudence.

The second form is skepticism that the public authorities can successfully act on behalf of the common good, even if the latter exists. On this view, the common good can only be attained indirectly, through invisible-hand mechanisms such as, another of Holmes’ coinages, the “marketplace of ideas.” These two forms of skepticism share a crucial negative commitment: a horror of purposive rule directing and coordinating the polity towards the common good—precisely what the classical legal tradition envisions as the central or ordinary case of rule by and through law. And the classical picture is also central to the American legal tradition, which thus sets its face against both the arrogance of judicial libertarianism and the moral skepticism of Holmesian positivism. It assumes that there is a common good that rulers can, should, and usually will act purposively to attain through reasonable determinations of (potentially competing) principles.

In the nature of things this approach requires reasoned argument in the spirit of Dworkin’s fit and justification—with integrity. It requires courts to make reasonable judgments, in good faith, about whether public authorities have themselves made reasonable judgments, in good faith. It is no accident that Harlan’s dissent in Lochner is longer than both the majority and Holmes’s dissent. The former is comparatively brisk because it ignores, minimizes, or arbitrarily sweeps aside perfectly sensible arguments for the reasonableness of the legislation at issue; the latter is brisk because it strikes a bored pose of skeptical detachment that requires no engagement with reason at all. Only Harlan does reason right, asking why the relevant legislation might plausibly make sense as a purposive measure aimed at the common good. The other opinions stray from the path in one direction or the other. Hence only Justice Harlan could truly say, as the motto of the Josias has it, “[n]on declinavit ad dextram sive ad sinistram.”

Adrian Vermeule