Lawyers as Common Good Servers

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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.

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” →

An Administrative State for the Common Good

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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.

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“ →

Reorienting Constitutional Theory

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This is the first 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. Michael Foran is a Lecturer in Public Law at the University of Strathclyde.

Adrian Vermeule’s Common Good Constitutionalism is a significant work in constitutional theory that has the potential to dramatically influence the legal and political zeitgeist. Much of it is deliberately unoriginal. Vermeule will be the first to tell you that this is a project of revival and remembrance. This shouldn’t be taken to mean that there is nothing new here, however. In fact, the impact of this book on constitutional theory poses a real threat of destabilising existing orthodoxies. The book’s contribution lies in how the author draws upon the largely forgotten natural law bedrock of western jurisprudence and thrusts it into the unwelcoming—even hostile—midsts of liberal constitutionalism.

Vermeule’s account of common good constitutionalism operates at several levels. First, he relies on the common good as a justificatory lens of analysis, focusing on what the overarching point and purpose of constitutionalism should be. At this level, law generally and constitutional law specifically can be explained by reference to several competing accounts of what their purpose is. Liberal constitutional theory generally argues that this purpose is to restrain the power of the state and protect individual liberties.

Continue reading “Reorienting Constitutional Theory” →

Symposium on Common Good Constitutionalism

JAF

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

The Short History and Checkered Tradition of “History and Tradition”

Jacob Neu

In three major cases at the end of June, the Supreme Court has relied upon a “history and tradition” test to define the scope of constitutional rights and federal powers. Writing for the Court in Dobbs v. Jackson Women’s Health Organization, Justice Alito overruled Roe v. Wade held that the Constitution did not protect a right to abortion and that unenumerated rights and liberties “must be deeply rooted in this Nation’s history and tradition and implicit in the concept of ordered liberty,” quoting Washington v. Glucksberg in support. In Kennedy v. Bremerton School District, Justice Gorsuch overruled Lemon v. Kurtzman’s test for a violation of the Establishment Clause and held, “The line that courts and governments must draw between the permissible and the impermissible has to accord with history and faithfully reflect the understanding of the Founding Fathers.” And in New York State Rifle & Pistol Association v. Bruen, Justice Thomas rejected reliance on intermediate scrutiny in considering government regulation of firearms under the Second Amendment, holding that the government must show a firearm regulation is support by the text, “as informed by history,” or “comported with history and tradition.” In each case, the Court expressly or implicitly rejected a tiered scrutiny framework and chose to focus instead on how the scope of the right was historically defined within the Anglo-American tradition.

What do “history and tradition” mean in these contexts, and why should they be important? By this test, the conservative majority intends to ground American law within a broader tradition to avoid the temptation of “living constitutionalism.” Yet these cases also demonstrate the problem of originalist reliance on history only at specifically favored moments in time, rather than incorporating a broader understanding of the tradition in which they are embedded. And if the “history and tradition” test is ultimately not grounded in the legal and philosophical substance of that tradition—the natural law and the Western classical legal tradition, as interpreted by English jurists—then they are at best half-hearted and superficial attempts to recall that tradition and will be easily manipulated in future cases. 

Continue reading “The Short History and Checkered Tradition of “History and Tradition”” →

A New Birth of Liberty: On Some Post-Dobbs Political Cartoons

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Recognizing that the law is not confined to its technical or historical aspects, Ius & Iustitium is pleased to present this essay by S.R.T., exploring one of the more infamous political cartoons published in the wake of the Supreme Court’s Dobbs decision. S.R.T. studies law and literature.

Four minutes after the decision was published in Dobbs v. Jackson Whole Women’s Health Organization, a cartoonist posted an image of a statue of a pope holding a gun to the head of a pregnant Lady Liberty. As a piece of propaganda, this cartoon is impressively misbegotten, which has not prevented it from doing moderate numbers on Twitter. But detach it from the artist’s propagandistic intent, and the cartoon becomes a fascinating artifact. Among other things, through its very failure as propaganda, the cartoon accidentally reveals much about the poverty of the liberal imagination. It is worth spending a few minutes to see how.

Continue reading “A New Birth of Liberty: On Some Post-Dobbs Political Cartoons” →

John Roberts’s Dobbs opinion: discretion, restraint, rules

Jacob Neu

A quick comment on Chief Justice John Roberts’s concurrence in Dobbs. As many expected from oral argument (including me) and leaks of the deliberation in May, Chief Justice Roberts sought in vain for a middle ground that would uphold the Mississippi law banning abortion after fifteen weeks with certain exceptions, but that would not overrule the basic right to an abortion found in Roe and Casey. Roberts’s concurrence in the judgment stuck to his lonely compromise position. I hoped that Roberts might at least offer some basis for why a fifteen-week ban would be permissible without a wholesale review of Roe.

Continue reading “John Roberts’s Dobbs opinion: discretion, restraint, rules” →

Justice Alito and constitutional relevance

Pat Smith

The Supreme Court has overruled its decisions in Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey. The decision in Dobbs v. Jackson Women’s Health, penned by Justice Samuel Alito, and joined by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, makes it clear that Roe and Casey were wrongly decided and protected rights not actually deeply rooted in the history and tradition of the United States. As a result, the Supreme Court has held that the states are free to craft for themselves regimes of abortion regulation, subject to rational basis review. 

When Justice Alito’s draft was leaked, I expressed concerns about what I have called “Little Giant Constitutionalism,” referring to Stephen Douglas’s position in the Lincoln-Douglas Debates. The Dobbs opinion takes a contentious national issue and makes it…a contentious national issue. This is by no means a problem if you are a positivist or a relativist. If, however, you believe that there are principles of the natural law at stake, putting them to a vote is hardly a welcome prospect. But that is as good, it seems, as it is going to get under Dobbs. As Adrian Vermeule has noted, Justice Kavanaugh, who seems to be the critical fifth vote in the Dobbs opinion (remember that Chief Justice John Roberts concurred only in result and scolded the majority for going as far as overturning Roe and Casey), was at pains to distance himself from the Fourteenth Amendment personhood argument.

Continue reading “Justice Alito and constitutional relevance” →

How to Read Dobbs

Adrian Vermeule

Dobbs should, first of all, be celebrated — loudly, and without feeble misgivings about the disappointment of the supporters of abortion rights. It partially (and I stress partially) cured a kind of wound in our constitutional law that had festered over time, infecting and distorting not only substantive constitutional law, but also adjacent and ancillary bodies of law such as standing, procedure and remedies. Justice Alito’s opinion for the Court is entirely convincing that, taken on its own terms, the pompous claim of the controlling joint opinion in Planned Parenthood v. Casey — that the Court could call the contending national parties to settle their controversy — had not been fulfilled. Indeed Casey perversely produced all the more conflict. Casey and Roe had to be overruled to restore the body of our constitutional law to health.

Continue reading “How to Read Dobbs” →