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Reclaiming the Natural Law for 21st Century Constitutionalism

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This is the second 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. Xavier Foccroulle Ménard holds a B.C.L. and an LL.B./JD from McGill University Faculty of Law and an LL.M. in legal theory from the University of Toronto Faculty of Law. He works at Norton Rose Fulbright LLP in Montreal. He would like to acknowledge the Runnymede Society and Advocates for the Rule of Law for contributing to the elaboration of these ideas.

Introduction

The tide is undoubtedly turning: after a long period of exile, classical natural law is once again knocking on the door of academic jurisprudence, and many of us have been willing to extend our arms and welcome it back with a smile.[1] That common good approaches are again part of scholarly discourses is an absolute blessing and a great source for rejoicing.[2] Without a doubt, a reintegration of natural law thought into constitutionalism is necessary to fully address the main and perennial issue: how should constitutions be interpreted?

One major reason for this renewed interest in the common good is that modern approaches to the question of constitutional interpretation have been viewed as unsatisfactory. This is particularly true of the conservative legal movement in the United States. Between the positivistic formalist pole on the one hand, favouring strong respect for the separation of powers and proceduralism, aiming to provide greater legal stability and certainty, and the progressive pole on the other hand, asserting the fading authority of the framers of the Constitution, believing in the constant and permanent necessity for change, where the law must be adapted and applied to new social realities, originalism has been elected the default favourite of the legal conservative movement in America. From Justice Scalia to today, with Justice Barrett now seated at the Supreme Court, the ascendency of originalism is undeniable. But originalism arguably peaked last year with Bostock v. Clayton County, Georgia,[3] now a landmark case, in which Justice Gorsuch used positivistic originalist reasoning to protect the sexual orientation and gender identity of individuals under Title VII of the Civil Rights Act of 1964. The Bostock decision only catalyzed the emergence of a new movement within American legal conservatism looking for alternative answers to our question of what the proper method to constitutional interpretation is.[4]

In looking to reclaim the natural law tradition for the common good, which infused and still infuses Western constitutions, the answer of common good constitutionalism was brought forth by Adrian Vermeule. This opens the door for renewed inquiries into the nature of law and of the legislative act, in the footsteps of Richard Ekins, in order to retrieve insights from the classical legal tradition germane to constitutional interpretation.

On Common Good Constitutionalism

We owe the current resurgence of interest in common good constitutionalism to Adrian Vermeule. By publishing a thought-provoking essay titled “Beyond Originalism”[5] in The Atlantic, the Harvard law professor disrupted the mainstream approaches to constitutional interpretation favored by legal conservatives. Originalism, he argues—the view that constitutional meaning was fixed at the time of the Constitution’s enactment—served the conservative legal movement well but “has now outlived its utility” and now actually stands in the way of developing a “substantively conservative approach to constitutional law and interpretation.” This approach beyond originalism, which Vermeule has labelled common good constitutionalism, would instead hold that “government helps direct persons, associations, and society generally toward the common good” and that strong political rule oriented to attaining the common good is entirely legitimate. One can already notice the Aristotelian influence, and yet this is very much a contemporary project. In other words, a new method of constitutional interpretation must be adopted to surpass mere proceduralism, one able to incorporate morality in order to achieve real social justice, that is, the common good itself.

Common good constitutionalism, therefore, is, in Vermeule’s words, “methodologically Dworkinian.” In this, it rejects the supposed “neutrality” of the originalist method. Following Ronald Dworkin’s view, this approach holds that, when interpreting the constitution and deciding on specific cases, judges do and must appeal to the most fitting and best justifying moral commitments.[6]

The emphasis on the common good as understood in the classical legal tradition, from which Western constitutional principles descend, reveals the proper set of normative commitments: when interpreting the Constitution, reading into its “majestic generalities and ambiguities,” judges should draw upon the principles of natural law theory. Vermeule lists many principles constitutive of common good constitutionalism: (a) respect for the authority of rule and of rulers, (b) respect for the hierarchies necessary to a functioning society, (c) solidarity within and among families, social groups, workers’ unions, and all other meaningful communities, (d) proper subsidiarity, and respect for the legitimate roles of public bodies and associations at all levels of government and society, and (e) a willingness to “legislate morality”, recognizing that all legislation is necessarily founded on some substantive conception of morality, and that the promotion of morality is a core and legitimate function of authority. As an example, Vermeule points to the general welfare clause[7] of the Constitution of the United States, that gives Congress “power to provide for the common Defence and general Welfare of the United States” as a good place to ground principles of natural law.

In this light, words like “freedom” and “liberty” must not be conceptualized strictly in liberal terms —freedom from and freedom to[8]—as the originalist method presently suggests, but instead can refer to more profound notions, including that of the “natural human capacity to act in accordance with reasoned morality,” or freedom for… (i.e., it has a direction, since freedom is for the good, or as Pope Saint John Paul II beautifully put it, freedom is for love).[9] What Vermeule is really proposing then is a metaphysical pivot in the way we understand constitutions and their terms. Indeed, common good constitutionalism allows, and even encourages, the interpreting judge to move from the text to the telos of foundational constitutional concepts.[10] This approach is thoroughly teleological, centered on the universality of the end to which humans are ordered: the common good in the natural world, mirroring the beatific vision of God in the supernatural world.[11] And thus the natural is participating in the eternal because the natural law is our participation as rational beings in the eternal law.[12] Conor Casey is therefore correct in his assessment that common good constitutionalism is built on the thought of great classical philosophers like Aristotle and Saint Thomas Aquinas, as well as on the whole doctrine of the Catholic Church, rather than on the ideas of the modern political theorist and boogeyman of liberalism, Carl Schmitt.[13]

The Nature of Law and the Legislative Act

A common good approach to constitutional interpretation implies important truths about the nature of law, which is always directed towards an end, and about the legislative act itself. Even for Josh Hammer, who claims that only common good originalism is a legitimate methodological framework upon which an assertive and moralistic conservative jurisprudence can be built, the Preamble of the Constitution remains of utmost importance because it is “the closest we might come to an express enunciation of the charter’s intent and purpose.”[14] Following eminent English jurist Sir William Blackstone, Hammer writes that interpretation requires us to consider the cause that moved the legislator to enact the legislation.[15] In other words, because the legislative act precedes the interpretive activity, our understanding of the nature of legislation must precede our understanding of the manner in which interpretation is to be conducted. In more contemporary times, this proposition and its implications have been cogently advanced by Oxford law professor Richard Ekins.

Law, by its nature, entails a teleology: as Aquinas explained, all legislation is promulgated to fulfill an end, a telos, that is intelligible to reason.[16] Ekins correctly notes that lawmaking institutions are practical authorities which act for reasons and seek to introduce changes in the law.[17] The common good itself requires the existence of such institutions that have “the capacity to change the law” when reason dictates.[18] Accordingly, the central case of legislative activity occurs when “[t]he legislature responds to reasons to change that law,” and the resulting legislation is the expression of a reasoned choice to change the law for the common good.[19] Ekins explains that legislators reason from “relatively abstract ends” toward “more particular states of affairs that are more attractive elaborations of the more abstract ends,” or determinations, and this culminates in “a complex scheme of means-end relations, which the legislature may choose, in which case it acts intending the means and the ends” reflected in the legislation.[20]

The same is true for a Constitution, which Ekins also describes as a deliberate lawmaking act.[21] Indeed, in enacting a Constitution, an “intentional act,” the legislature crystallizes in a law a set of propositions that remain valid “until it expires on its own terms or is overtaken or amended by some subsequent act of lawmaking.”[22] That the legislative act is thus a “reasoned activity,” and that the object of legislation is “to secure the common good,”[23] is “the central case of the legislature.”[24]

It follows from this teleological understanding of the legislative act, and of the nature of law generally, that the point of constitutional and statutory interpretation is to understand the lawmaker’s reasons for acting.[25] As I have summarized elsewhere with Stéphane Sérafin and Kerry Sun, “[t]o interpret is to inquire about the reason the legislature chose the specific means, the specific determinatio, it adopted in pursuit of the ultimate common good.”[26] The added difficulty with constitutional interpretation is that the propositions found in constitutions are, more often than not, under-determined. To conceptualize a Constitution as an act of reason means that the object of interpretation cannot be reduced solely to the text itself—we must look to what the lawmaker did, not merely what it said. Because the object of interpretation really is the full legislative act as “grounded in an intelligible chain of reasoning,”[27] the goal “is not to interpret words but to interpret language use.”[28] When conducting constitutional interpretation, therefore, the judge must understand and give effect to the specific means chosen by the constituent body, the determinatio, that is clarified through a genuine reflection on the common good.

Conclusion

There is arguably no necessary bond between common good ideas in constitutional interpretation and the legal conservative movement. In many ways, the practical association between the two is circumstantial. As a matter of fact, the common good is by essence neither conservative nor progressive; it is simply the perfection of the members of the polity into social virtue. The Catechism of the Catholic Church teaches that “by common good is to be understood ‘the sum total of social conditions which allow people, either as groups or as individuals, to reach their fulfillment more fully and more easily’” and that “[t]he common good concerns the life of all.”[29] Put simply, the common good embodies a true social justice and true individual emancipation, together at once. Many times, the common good will require actions and determinations that are considered “progressive” by the standards of our contemporary political spectrum, such as stronger protections against animal cruelty and the elimination of the death penalty today. Other times, its prescriptions will be regarded as “conservative” by the lens of modern enlightened opinion. Yet, it remains that common good constitutionalism aims for the good of individuals and society, not for the sake of ideology.

Regardless of the political outlook of all the aforementioned, looking first and foremost for legislative intent, understood as oriented toward the common good, is most respectful of the principles of the classical legal tradition: from natural law to human law, Aquinas teaches that law is by essence a directed work of reason.[30] Consequently, to the question of how should constitutions be interpreted, the answer is through their telos first and above all.

Xavier Foccroulle Ménard

  1. Contra new natural law theory, which was adopted by important conservative legal thinkers such as Germain Grisez, John Finnis, Robert George, Joseph Boyle, Patrick Lee, Christopher Tollefsen and many others. ↑

  2. See e.g. Conor Casey, “‘Common Good Constitutionalism’ and the New Battle over Constitutional Interpretation in the United States” (2021) October 2021 Public Law 765; Stéphane Sérafin, Kerry Sun & Xavier Foccroulle Ménard, “The Common Good and Legal Interpretation: A Response to Leonid Sirota and Mark Mancini” (2021) 30:1 Const Forum const 39. ↑

  3. 140 S. Ct. 1731 (2020). ↑

  4. As predicted in Hadley Arkes, “Vermeule, his Critics, and the Crisis of Originalism” The American Mind (May 6, 2020). ↑

  5. Adrian Vermeule, “Beyond Originalism” The Atlantic (March 31, 2020). ↑

  6. See gen. Ronald Dworkin, Law’s Empire (Cambridge: Harvard University Press, 1986). ↑

  7. US Const, Article I, Section 8, Clause 1. ↑

  8. See Isiah Berlin, “Two Concepts of Liberty,” Four Essays On Liberty, (Oxford: Oxford University Press, 1969), at 118–72. ↑

  9. Jean-Paul II, Mémoire et identité (Paris: Flammarion, 2005) at 54–59. ↑

  10. Whether this implies that the telos is considered in understanding the constitutional provision, an approach resembling to Richard Ekins, or that the interpreter can adopt the telos itself, an approach more aligned with Ronald Dworkin, has not been clearly stated and should be clarified by Adrian Vermeule and Conor Casey in the upcoming years. ↑

  11. Pope Saint John Paul II, Veritatis Splendor (Vatican, 1993) at paras 41–42. ↑

  12. Saint Thomas Aquinas, Summa Theologiae, I-II, q. 90 a. 2. ↑

  13. Casey, supra note 2 at 782–83. ↑

  14. Josh Hammer, “Common Good Originalism: Our Tradition and Our Path Forward” (2021) Harv. J.L. & Pub. Pol’y at 927. This view is very similar to the normative originalism developed by Jeffrey Pojanowski and Kevin C. Walsh in contrast to positive-law originalism in Jeffrey Pojanowski & Kevin C. Walsh, “Enduring Originalism” (2016) 105 Georgetown Law J 97. ↑

  15. Ibid at 941. ↑

  16. Aquinas, supra note 12, I-II, q. 90 a. 1–2, q. 95 a. 1. ↑

  17. Richard Ekins, The Nature of Legislative Intent (Oxford University Press 2012) 112–117 [Legislative Intent]. ↑

  18. Ibid at 120. ↑

  19. Ibid at 123–24. ↑

  20. Richard Ekins, “Legislation as Reasoned Action” in Grégoire Webber et al, eds, Legislated Rights: Securing Human Rights through Legislation (Cambridge, UK: Cambridge University Press, 2018) 86 at 100 [“Reasoned Action”]. ↑

  21. Richard Ekins, “Objects of Interpretation” (2017) 32 Constitutional Commentary 1 at 1, 22–24 [“Objects of Interpretation”]. See also Donald L. Drakeman, “The Hollow Core of Constitutional Theory: Why We Need the Framers” (Cambridge: Cambridge University Press, 2021). ↑

  22. Ibid at 23. ↑

  23. Ekins, “Reasoned Action”, supra note 20 at 92. ↑

  24. Ekins, Legislative Intent, supra note 17 at 121. ↑

  25. Ibid at 136–37. ↑

  26. Sérafin, Sun & Foccroulle Ménard, supra note 2 at 50. ↑

  27. Ekins, “Reasoned Action”, supra note 20 at 97. ↑

  28. Ekins, “Objects of Interpretation”, supra note 21 at 2. ↑

  29. Catechism of the Catholic Church (Vatican: Libreria Editrice Vaticana, 1993), art 1906. ↑

  30. Aquinas, supra note 12, I-II, q. 95 a. 1–4. ↑