The Bourbons of Jurisprudence

Posted on by Adrian Vermeule

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

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]

Atiq and Mathews go on to explain that “Baude and Sachs’ arguments for originalism presuppose a version of Hartian positivism that is freighted with assumptions that have not been defended by any positivist. Their version of legal positivism might give us the result that originalism is our law, but that would not answer the question of why anyone should accept it.”[5] I need not explain the internal jurisprudential details of Atiq and Mathews’ demonstration. The only important point for present purposes is that Baude and Sachs represent as resting on deep socio-legal consensus a very particular version of positivism and (hence) originalism, one that seems confined largely to Baude and Sachs:

Baude and Sachs’ starting premise, stated at the appropriate level of specificity, is deeply controversial even among positivists…. The problem is not even just that [Baude and Sachs’ version of] positivism cannot lay claim to being part of an “overlapping consensus” in the legal academy. It is not even clear that Hartian positivism, the view that only social facts always and everywhere determine the law, is the consensus view. Baude and Sachs’ support for this empirical claim about Hart’s theory — that it “fits an overlapping consensus among American legal scholars” — is the following footnote:

See H.L.A. HART, THE CONCEPT OF LAW (3d ed. 2012); see also infra Section II.A (describing Hart’s theory); cf. Mark Greenberg, The Moral Impact Theory of Law, 123 YALE L.J. 1288, 1298 n.23 (2014) (describing “Hart’s version of legal positivism” as “the most influential position in contemporary philosophy of law”).

The footnote is jarring, given that Baude and Sachs clearly appreciate that figuring out the theoretical commitments of a large and diverse body of individuals requires complex empirical study. After all, that is what we are told we must do to figure out whether judges are sufficiently committed to originalism for originalism to be our law. Why, then, should we be so casual in conjecturing about our collective jurisprudential commitments?[6] 

In short, Baude and Sachs have in effect been doing jurisprudence without a license, and doing it about as well as off-license practitioners of a specialized discipline usually do. They try to pass off as a deep commitments of our legal order what are, in fact, highly contestable claims for which they provide essentially no evidence. They assume by brute force that there exists deep consensus on a particular ontology of law (what sorts of law there are and can be); imagine, erroneously, that their particular ontology follows from the concept of law itself; and then in turn imagine erroneously that their particular account of legal validity and legal interpretation in the American legal system follows from that ontology. (In fact, however, as we will see shortly, their version of originalism is merely one among a proliferating variety). One way of understanding this disastrous overconfidence is as a kind of theoretical myopia, a failure to understand that the world of American legal practice and the varieties of American legal theory over time are broader, richer and stranger than is dreamt of in Baude and Sachs’ philosophy, such as it is.

This critique, although widely noted and discussed, was merely one among a number of similar and pointed critiques of Baude and Sachs’ approach offered independently by scholars with varying commitments,[7] a fact that itself further undermines Baude and Sachs’ claims about consensus. Yet it seems that Baude and Sachs, like the Bourbons of the restoration era, have learned nothing and forgotten nothing.[8] In a forthcoming review[9] of Common Good Constitutionalism,[10] they attempt to turn all legal argument into jurisprudential theory; assume the truth of their own idiosyncratic approach to jurisprudence, thereby silently assuming away the very premises of the classical legal tradition rather than engaging with those premises; and indeed go so far as to imply at several points that agreement with their jurisprudential approach is the sine qua non of genuine scholarship. They again suggest that their unusual versions of positivism and originalism capture a deep consensus about the commitments of our legal order. In fact, however, a large supermajority of legal theorists reject originalism outright;[11] disparate versions of originalism have proliferated,[12] as Atiq and Mathews note;[13] and those versions are not even mutually consistent.[14] Baude and Sachs defend a particular and rather recondite academic version of originalism,[15] one of perhaps a dozen such versions now floating about the academy. More importantly, none of those versions are importantly reflected in the operative practice of the courts,[16] even if they garner an occasional decorative citation (and most never do). This sort of private printing of theoretical currency, while demonstrating laudable ambition if nothing else, is not the coin of the realm and will not pass as legal tender. It displays in an aggravated form the  same foundational errors that Atiq and Mathews diagnosed in their work.

Common Good Constitutionalism, as the book explains on the first few pages,[17] is not a work of jurisprudence, unless all legal argument is understood in jurisprudential terms. Rather the book offers an argument within constitutional theory,[18] an argument with both a general and a particular part.[19] As to the former, it proposes a deliberately unoriginal methodological framework for approaching questions of constitutional lawmaking and interpretation, drawing on the classical tradition’s approach to the overarching point and purpose of constitutionalism. As to the latter, it offers an interpretive account,[20] with dimensions of both fit and justification, of the arguments, doctrines and practices of our public law, especially the applied practice of agencies, the courts, and other interpreters of law. The basic interpretation the book advances—the one that both fits and justifies the development and practice of our public law—is the classical account of law, the mainstream of the Western legal tradition at least since the Romans, in which law contains both lex and ius, both civil positive law and background principles of law (including the ius naturale or natural law and the ius gentium or law of nations).

As the book also explains, therefore, the version of originalism in which the book is interested, and that it critiques, is the mainstream version professed by originalist judges today, as opposed to the increasingly epicyclical versions published in legal journals. That mainstream version of judicially professed originalism is positivist in the standard, non-idiosyncratic sense identified by Atiq and Mathews (which, to repeat, does not yield Baude and Sach’s views without further highly idiosyncratic and stylized assumptions). It holds, as Justice Gorsuch declared in Bostock v. Clayton County,[21] that “only the written word is the law” and that judges must interpret legal texts to track social facts about the public meaning of those texts at the time of enactment.[22] As the Court recently held in New York State Rifle & Pistol Ass’n v. Bruen,[23] ascertaining the “public understanding” of a constitutional provision as of the time of enactment and soon thereafter is a “critical tool of constitutional interpretation” for judges.[24]

The problem, however, as the book argues throughout, is that mainstream judicial originalism may be professed in theory, but it is not practiced in fact. What originalist judges say, in the moments when they venture to make general theoretical pronouncements, is constantly belied by what they do in practice[25]—or, more precisely, by what they say later in the opinion, well after reciting their abstract commitments, in order to resolve actual hard cases, where the “written word” is general, vague, ambiguous, or facially in tension with broader enduring commitments of the legal system and general legal reason. In case after case and doctrinal area after area, originalist judges draw not upon backward-looking claims about social fact to resolve hard cases, but ambitious and contentious claims of political morality, in particular the subset of political morality that bears upon legal justice—a type of claim our legal practice has historically embraced and still does.

Justice Gorsuch himself emphatically did so in Bostock, that lays out the now-standard form of positivist originalism. In order to justify reading the statutory prohibition (“unlawful to discriminate against any individual because of sex”) at a sufficiently high level of generality to encompass discrimination on the basis of sexual orientation and gender identity, thereby confounding the understandings and expectations of the legislators who enacted the statute in 1964, Gorsuch argued that reading the text at a lower level of generality would “tilt the scales of justice in favor of the strong or popular.”[26] Likewise, in Bruen, Justice Thomas’ opinion for the Court argued for interpreting the scope of the Second Amendment by means of specific historical analogies on the ground that “reliance on history to inform the meaning of constitutional text … is, in our view, more legitimate, and more administrable, than asking judges to make difficult empirical judgments,”[27] of the sort the Court felt were required by the familiar means-ends scrutiny used elsewhere in constitutional adjudication. (Historical inquiry, of course, involves no such empirical difficulties).

One searches these key arguments in vain for any claim about consensual social facts. The Justices’ views about how the “scales of justice” can be balanced, or about which approach to constitutional adjudication is most “legitimate” and suitable to the institutional competence of judges, are normative views about what political morality and legal justice require; one cannot read the answers to those questions off the pages of historical records.[28] In a positively royal display of self-confidence, Baude and Sachs believe they have “solved” the level of generality problem, Dworkins’ central critique of originalism, in a few pages, arguing that judges faced with such a problem merely have to do “ordinary law.”[29] As the examples just given suggest, however, what judges ordinarily do, as part of our actual legal practice, is to argue for a particular level of generality by invoking ambitious and contestable claims of political morality. So there is a sense in which Baude and Sachs are correct that the problem is solved by ordinary legal practice, but it is not the positivist sense they intend. To say that these judges are simply doing originalism incorrectly is to skip back and forth between empirical and normative argument, between putative description of deep sociolegal consensus and normative critique. It shows, if it shows anything, that the particular version of originalism preferred by Baude and Sachs, which supposedly captures a deep consensus about our law, is in fact remote from the practice of our law.

More generally, the book argues, with a range of examples, that vast stretches of our legal practice are not operationally positivist or originalist at all, let alone positivist and originalist in the very particular sense that Baude and Sachs defend. Across area after area of public law, including free speech, nondelegation, standing, and other subjects, the doctrine developed or applied by professedly originalist judges does not come close to tracking the original understanding, but instead rests on controversial large-scale arguments of political morality and legal justice.[30] Thus even the mainstream positivist originalism occasionally professed by the courts is not our legal practice, because it systematically lacks the resources necessary to resolve hard cases; this is one of the senses in which, the book argues, originalism is illusory. Another is that originalism, especially if conceived as a standard of correctness rather than a decision procedure,[31] provides no reliable technology for judges deciding cases, the very point of originalism as originally conceived,[32] before originalist theory took flight into jurisprudential abstraction. To deny that originalism offers a decision procedure, to deny that it even claims to help judges go about their job of interpreting the law, is to abandon any possibility that originalism is relevant to legal practice.[33] Originalism is either our law, or it is a highly specialized standard of theoretical correctness that even self-identified originalist judges may often fail to attain, but it cannot be both.

Once we turn from recent cases and current doctrine to American and Anglo-American legal history, the empirical situation becomes even worse for any version of the claim that positivist originalism is “our law.” If asked whether “only social facts always and everywhere determine the law”[34] — the touchstone of Hartian positivism in general, even before one reaches Baude and Sachs’ idiosyncratic construal of positivism — approximately every member of the founding generation, and approximately every member of many succeeding generations, would merely stare in puzzlement. If they could be brought to understand the question at all, they would emphatically deny the truth of the positivist claim. Instead they would say something like “law derives from God, from nature, from the practice of nations, and finally from civil positive commands — and the latter are determinations of natural reason.” And their practice overwhelmingly reflected those views. The barest acquaintance with any substantial body of caselaw from the founding era (and indeed well through the 19th century and beyond) shows that, as the legal historian Jonathan Gienapp put it, “[o]riginalists’ understanding of constitutional writtenness … is anachronistic, a species of modern constitutional thinking that they unwittingly and uncritically impose on the eighteenth century. Founding-era constitutionalists by and large were not positivists. They tended to think that much of law was “out there” — like the principles of mathematics or natural philosophy — awaiting discovery through reason and observation.”[35] In this regard, the founders were merely following the English common-law tradition of their time,[36] which profoundly influenced their understanding of legal ontology in general and public understandings of legal terms.

Failing to engage the argument on its own terms, Baude and Sachs address none of this. As in their theoretical work on jurisprudence, they assume, with no adequate warrant for doing so, that their own idiosyncratic views of positivism and originalism capture the deep sociolegal consensus at the foundations of our constitutional order. What they would need to rebut the claims of the book on its own terms, rather than changing the subject (the hallmark of the jurisprudential turn), is a contrary interpretation, also with dimensions of both fit and justification, including evidence on the ground that our legal practice is best characterized as embodying commitments to positivism and originalism that operate to resolve a wide range of cases or other interpretive disputes. That evidence is precisely what they have entirely failed to provide. Instead they simply postulate, in a kind of ukase for a polity of two, that positivism and originalism, indeed their own unusual versions of positivism and originalism, are somehow our law, and that legal arguments in any other register do not count. The consequence is that Baude and Sachs silently assume away the non-positivist and non-originalist premises of the classical legal tradition, and of the vast stretches of our legal practice and our legal history that are best interpreted in light of the tradition—an impressive example of begging the question.

This fundamental error infects all the other subsidiary points in the review, which repeatedly misconceive the claims of the classical legal tradition and assume away their very premises by treating those claims as erroneous or unnecessary positivist arguments, rather than trying to understand them on their own very different terms. A few examples will suffice.

The role of background principles (ius). In a curious passage, Baude and Sachs write with reference to the central role of background principles in classical interpretation that “[p]ace Vermeule, originalists use these background principles just as well as anyone else, even if we don’t call them by Latin names.”[37] To begin with, one wonders what Justice Scalia, who frequently invoked principles of the classical tradition in Latin,[38] and for whom Sach’s chair is named, would make of this. For Scalia, doing so had an important theoretical and not merely decorative function, which was to connect current practice with the immemorial principles and practices of the whole Western legal tradition, the very language of our classical law.

More importantly, however, Baude and Sachs here read the role of ius entirely the wrong way, through a positivist lens that is foreign to the classical tradition. For the positivist, background principles are law only insofar as they are recognized and incorporated into law as a matter of social fact. The classical tradition, however, holds that these principles are law ipso iure, binding of their own force— an example of Gienapp’s category of law that is “out there,” which was also, in important part, the founding generation’s own understanding of law. To understand those principles as binding only insofar as they are incorporated into law on positivist terms is to conflate ius with lex; it simply misses the point of the classical view, skates past one of its most basic claims, rather than refuting or even addressing that claim. As Common Good Constitutionalism put it with reference to ius naturale, “this sort of view yields only an ersatz form of respect for the natural law. One obeys the natural law only insofar as it happens to be picked up by an originalist command (a form of soft positivism), not because it has binding force as natural law in its own right. But it is intrinsic to the natural law that it should be followed for its own binding force, not merely because some incumbent ruler commanded that it be followed. The natural law isn’t truly followed at all if it isn’t followed as natural law.”[39]

A powerful case study of the difference between the (inclusive) positivist approach advanced by Baude and Sachs, and the natural law approach, is offered by John Finnis in his treatment of the Nuremberg Trials. Following the conclusion of the Second World War, many German officials accused of war crimes were tried for a range of offenses specified in the London Agreement and Charter of 8 August 1945 made between the states governing Germany since its surrender. The judges of the Nuremberg tribunal established under the Charter held that the “defendants had at all relevant times been bound by (and in many instances had acted in violation of) the principles or rules specified in the London Charter, such obligations being derived not, of course, from the agreement (which was made subsequent to the acts in question), but rather, as to some of the crimes alleged, from international law and, as to the alleged “crimes against humanity,” from the “elementary dictates of humanity.””[40]

As Finnis notes, a significant part of the tribunal’s decision was to “hold the defendants responsible for violating these rules and dictates” and reject any “argument that their acts’ compliance with German law could make them lawful acts.” The tribunal also rejected the contention that “finding them so responsible violated the principle of law and justice that no one should be punished except for violation of law.”[41]

For the inclusive positivist, says Finnis, the terms of the ruling are best explained by the fact the “Charter was positive law for the tribunal and directed it to apply moral rules which by virtue of that legal direction were also legal rules” that applied retroactively, but were not relevant legal rules applicable to the German officials at the relevant times their crimes were committed. In stark contrast, for the natural lawyer,

the moral rules applied were also rules of the “higher law” applicable in all times and places (and thus in Germany and its territories, before as after the Charter) as a source of argumentation and judgment “according to law” when the social-fact sources which are the normally dominant and quasi-exclusive source of law are, in justice, inadequate and insufficient guides to fulfilling obligations such as the judicial obligation to do justice according to law, or everyone’s obligation to behave with elementary humanity even when under orders not to—even if those orders have intra-systemic legal validity according to the formal or social-fact criteria of some existing legal system.[42]

In other words, for the natural lawyer the basic principles of ius at play in this case study were always binding of their own force and for their own sake, and not because of their sanctioning by a social-fact source – a distinction to which Baude and Sachs are oblivious.

Determinatio. Under the classical concept of determinatio, as the book explains[43], positive civil law represents a determination or specification of background principles of legal justice. (Consider, for example, the fundamental principles of legal justice that a defendant should have notice of the charges or claims against them and a fair hearing;[44] consider also, however, the myriad ways in which such principles may and must be given all sorts of further procedural, substantive and remedial specification by positive law). On this picture, the positive lawmaker has discretion to specify the shape and form in which the background principle is implemented. But that discretion is bounded by the fundamental condition that the specification be reasonable in the classical sense, that it carry out the rational public-regarding aim of the background principle, just as an architect given a commission to design a civic hospital has discretion to choose the shape and form of the design, but is constrained by the need to design a structure that will succeed in fulfilling the aims of the commission.

Baude and Sachs erroneously construe determination in a positivist light, seemingly imagining that a valid determination is a bare choice resting on the will of the civil lawmaker, and hence imagining that if they can show that the book’s particular arguments about the determinations made in the American legal system rest on judgments of “political morality” that do not flow in any necessary way from classical methodological premises, they have made a telling objection.[45] On the classical view of determination,[46] however, that the content of a particular determination does not flow in any necessary way from the background principle and instead requires further judgments of political morality just is itself a fundamental methodological premise, one that Baude and Sachs have misunderstood and implicitly assumed away. The prudential judgment of the lawmaker always intervenes between the background principle and the positive law made on the ground, as it were, but on classical premises prudential judgment is not (solely) an act of will, the expression of a bare preference. Rather it is always also a judgment about applied political morality, in particular a reasoned judgment about how legal justice can best implement the background principle in particular circumstances, in a complex interplay between critical and positive morality. Such judgments will always be contestable when the background principle leaves scope for multiple reasonable paths of specification. Both halves of this picture — that determination requires prudential judgments of political morality, and that such judgments are (sometimes or often) open to contest from those who would have made a different specifying judgment — are themselves part and parcel of the methodological premises that Baude and Sachs seem to think have already run out, as it were, when those judgments are made. Here too, the basic problem is a failure to understand the classical picture on its own terms, rather than as a kind of failed effort at positivism.

John Finnis the positivist?[47] A final and revealing example of Baude and Sachs’ theoretical myopia is that they manage, quite remarkably, to read John Finnis—a premier expositor of natural law theory—as a positivist. Baude and Sachs appear to understand Finnis as holding the view that natural lawyers confine any considerations of background principles of ius to the determination of whether an already ascertained legal obligation generates normative obligations, rather than also considering ius as an aid to interpreting the indeterminacies of positive law itself.[48] But any consideration of Finnis’ corpus would show that this is simply not a tenable reading of his position. In fact, Finnis holds that considerations of ius can be indispensable to determining what the posited law means and what legal obligations it entails in hard cases. What is more, it is clear Finnis does not confine considerations of ius to circumstances where background principles have been incorporated by a social-fact source.

The classical tradition to which Finnis adheres is of course emphatic that legal interpretation will be quite distinct from all-things-considered-moral-reasoning, from deciding legal questions by reference to the “flow of general (“extra-legal”) straightforward practical reasoning” about what should be done.[49] However, Finnis critically also accepts that “[t]his drive to insulate legal from moral reasoning can never…be complete,” for both descriptive and normative reasons.[50]

Finnis in fact broadly endorses Ronald Dworkin’s account of how adjudication proceeds in the kind of hard cases common to appellate courts. As Dworkin famously argued, officials in hard cases do, and should, approach interpretation by reading indeterminate legal materials like constitutional text, precedent, and practice in light of moral standards “prevalent in the judge’s community but in the last analysis just those standards that the judge can accept as in truth morally sound” to reach a determination that fits the communities existing law in a morally sound way.[51]

Finnis goes on to say that these moral standards, which “Dworkin (in line with natural law theory) treats as capable of being morally objective and true”[52] are not extra-legal considerations or policy arguments brought to bear by a judge, but themselves function as a “direct source of law (or justification for judicial decision) and, in a certain sense, as already law.”[53] Basic precepts of the natural law, says Finnis, are therefore best regarded as “judicially applicable moral rules and principles” and “ipso iure (i.e., precisely as morally and judicially applicable) rules of law” belonging to the “ius gentium portion of our law.”[54] These principles include moral absolutes which exclude “intentional killing, intentional injury to the person, deliberate deception for the sake of securing desired results, enslavement which treats a human person as an object or a lower rank of being than the autonomous human subject.”[55] In the classical tradition such principles are by no means used to set aside or displace posited law; instead, they are looked to in hard cases precisely in order to understand the full legal meaning of posited laws, as an ordinance of reason embodying choices of the legitimate authority that promulgated them. In other words, for Finnis discerning what legal – not merely moral – obligations are applicable in a given context, often require recourse to principles of ius.

Finnis is also adamant that constitutional interpretation can never reasonably strive to be exclusively historical and seek to confine itself to ascertaining socio-historic facts. That is, from a normative perspective a community should not set out to adopt interpretive methodologies which deliberately try to exclude entirely considerations of political morality. For Finnis, interpretation is an act that “can and should” be “guided by ‘moral’ principles and rules” that are a matter of “objective reasonableness” (as opposed to mere current convention or sentiment).[56] Failure by officials to accept the proposition that where legal materials are under-determinate they should be read, insofar as possible, consistent with basic principles of the natural law, is at the heart of errors committed in infamous cases like Dred Scott v Sanford and Roe v Wade.

In each case, Finnis notes there was a marked failure by officials to proceed with a “strong presumption, that, whatever the assumptions and expectations of its makers, every constitutional provision must, if possible, be understood as consistent with such basic human rights as to recognition as a legal person.”[57] In another essay, Finnis similarly argued that the US Supreme Court’s “radical failure” in Dred was to approach its duty of doing justice according to law with a “presumptionless positivism” that did not recognize that “law… is for the sake of persons, and that the founders’ intentions were therefore to be interpreted…in favour of the basic interests and well-being of every person within the jurisdiction so far as was possible without contradicting the Constitution’s provisions.”[58] Put succinctly, for Finnis legal interpreters are “entitled and required” to treat legal propositions as “presumptively oriented towards justice and common good.”[59] Finnis’ strong presumption that courts read posited law and the intent of the legitimate authority as consistent with core principles of ius is a staple aspect of the classical tradition, one which helps ensure posited constitutional text remains an ordinance of reason oriented to the common good and flourishing of all persons, its basic purpose and telos, and does not misfire in this regard and devolve into a perversion of law. Baude and Sach’s reliance on Finnis to justify the argument that ascertaining legal obligation can be reduced to discerning socio-historical facts that might only contingently incorporate considerations of ius is, therefore, fundamentally misplaced, verging on the bizarre. It is another example of a failure to imagine that there are modes of legal theory and legal argument that are not positivist modes, let alone the theoretically nonstandard version of positivism that Baude and Sachs urge.

*****

These are illustrative examples, not an exhaustive list. Although other odd arguments could be addressed,[60] I see no need to belabor the point. The twin errors that Atiq and Mathews identified in Baude and Sach’s work, that of seeing every legal claim as a jurisprudential claim and then of imagining that their particular, nonstandard jurisprudence provides the measure of quality of a jurisprudential claim, infect their review from beginning to end. Until Baude and Sachs learn to engage with the varieties of legal scholarship internally, on the premises set by that scholarship, rather than simply by asserting that anything that is not their own peculiar view is not scholarship at all, they will make no enduring contribution to the development of American legal theory. All the more so with legal practice, the basic reality constraint that prevents legal theorizing from ascending to fatal heights of abstraction.

Learning nothing and forgetting nothing, rigid, smug and remote from the practical realities of governance, the Bourbons were swept away within a few decades of their restoration. If the highly abstract, jurisprudentially inflected originalism and positivism of the idiosyncratic Baude and Sachs variety endures that long, even in the pages of the law journals, I will be surprised. The classical legal tradition, by contrast, has lived on for some two millennia, repeatedly showing an almost incredible capacity for revival in new circumstances, partly because of the very qualities of breadth, flexibility, adaptability and practical grounding that are the opposite of Bourbon jurisprudence.

  1. Ralph S. Tyler Professor of Constitutional Law, Harvard Law School. Thanks to Conor Casey and Michael Foran for helpful comments. ↑

  2. Emad Atiq and Jud Mathews, The Uncertain Foundations of Public Law Theory, (forthcoming) Cornell. J. L. Pub. Pol’cy (available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4032904). ↑

  3. The articles Atiq and Mathews discuss include William Baude & Stephen E. Sachs, Grounding, Is Originalism, 113 NW. U. Our Law?, 115 COLUM. L. REV. 1455 (20192349 (2015); William Baude & Stephen E. Sachs, The Law of Interpretation, 130 HARV. L. REV. 1079, 1082–85 (2017); Stephen E. Sachs, Originalism as a Theory of Legal Change, 38 HARV. J.L. & PUB. POL’Y 817, 819 (2015). ↑

  4. Atiq & Mathews, supra, at 8. In the latter part of the quote in text, Atiq and Mathews are paraphrasing and relying upon another critique of Baude and Sachs by Charles Barzun, ‘The Positive U-Turn’, 69 STAN. L. REV. 1323 (2017). ↑

  5. Atiq and Mathews, supra, at 16. ↑

  6. Atiq & Mathews, supra, at 25. ↑

  7. See, e.g., Barzun, supra; Jeffrey A. Pojanowski & Kevin C. Walsh, Enduring Originalism, 105 GEO. L.J. 97 (2016). ↑

  8. “Ils n’ont rien appris, ni rien oublié,” a bon mot conventionally attributed to Talleyrand. See https://www.oxfordreference.com/view/10.1093/acref/9780191843730.001.0001/q-oro-ed5-00010627. ↑

  9. William Baude & Stephen Sachs, The “Common-Good” Manifesto, (forthcoming, 2023) Harv. L. Rev. available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4190445 SSRN (hereafter “Baude and Sachs”). ↑

  10. Polity Books 2022 (hereafter cited as “CGC”). Their critique also encompasses reference to several essays, co-authored with Conor Casey, penned around the same time as Common Good Constitutionalism, including Conor Casey & Adrian Vermeule, Myths of Common Good Constitutionalism (2022) 45 Harv. J. Law. Pub. Pol’y. 103; Conor Casey & Adrian Vermeule, Argument by Slogan (2022) 12 Harv. J. Law. Pub. Pol’y: Per Curiam; and Conor Casey & Adrian Vermeule, Pickwickian Originalism, (22 March 2022) Ius & Iustitium, https://iusetiustitium.com/pickwickian-originalism/. ↑

  11. Eric Martinez & Ken Tobia, What Do Law Professors Believe About Law And the Legal Academy? An Empirical Inquiry, at 52 (available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4182521). ↑

  12. “[D]espite the suggestion of originalist rhetoric, originalism is not a single, coherent, unified theory of constitutional interpretation, but is rather a disparate collection of distinct constitutional theories that share little more than a misleading reliance on a common label.” Thomas B. Colby & Peter J. Smith, Living Originalism, 59 Duke Law Journal 239 (2009). ↑

  13. Atiq & Mathews, supra, at 9. ↑

  14. “Originalists disagree so profoundly amongst themselves about how to effectuate those underlying principles that over time they have articulated—and continue to articulate—a wide array of strikingly disparate, and mutually exclusive, constitutional theories.” Colby &Smith, supra. ↑

  15. See the sources cited in note 3, supra, and note 31, infra. ↑

  16. As discussed in CGC Chapter 3 and below. See infra at __. ↑

  17. Common Good Constitutionalism, 4. ↑

  18. As most other reviewers, by no means sharing the book’s methodological and substantive commitments, have had no trouble appreciating and addressing on the book’s own terms. See, e.g., Sandy Levinson, Adrian Vermeule’s Rejection of “Modern” Constitutional Theory, Balkinization (July 10, 2022); Richard Primus, The Other 630,000 Words, Balkinization (July 13, 2022). ↑

  19. CGC 11. ↑

  20. Interpretive in Ronald Dworkin’s sense (CGC 4–7). ↑

  21. 590 U.140 S. ____Ct. 1731 (2020). ↑

  22. 590 U.140 S. ____ (2020) 2. Ct. at 1737. ↑

  23. 597 U. S. ____ (2022). Available at https://www.supremecourt.gov/opinions/21pdf/20-843_7j80.pdf. ↑

  24. Bruen, supra, at 17, 33 (citing District of Columbia v. Heller, 554 U. S. 570 (2008) (per Scalia J)). ↑

  25. See generally Eric Segall, Originalism as Faith (Cambridge University Press, 2018). ↑

  26. Bostock, supra, 140 S. Ct. at 28.1751. ↑

  27. Bruen, supra, at 16 (internal quotation omitted). ↑

  28. That the Court also cited Baude and Sachs for the idea that “historical inquiry” relies on “various evidentiary principles and default rules,” Bruen, supra, at 16 n. 6, is a perfectly ironic illustration of the point, although no doubt the irony was unintended. All rules of (historical) evidence rest on express or implied normative assumptions and arguments about the costs of decisionmaking and the costs of error, about the collateral and systemic effects of admitting or not admitting certain categories of evidence, and a myriad other topics. H. Jefferson Powell put it memorably when he noted that the originalist who

    means to treat history responsibly is compelled to make judgments for which he is responsible throughout his interpretative enterprise, from his initial decision to employ history, through his reexamination of the founders’ world views, his inquiry into the meaning of their statements, and his treatment of their silences, to his final reconstructions of their constitutional opinions and his use of those reconstructions in his normative work. Rather than avoiding the responsibility of choice, history requires of the originalist a whole new range of contestable…decisions. Thus, rather than ending dispute with an unarguable fiat from the past, his use of history simply becomes another arena for interpretative disagreement… If [originalists] wish to accord authority to history – and not to their own historicized myths – they cannot ignore those limits.

    H. Jefferson Powell, Rules for Originalism, 73 Va. L. Rev. 659, 691 (1987). ↑

  29. Baude and Sachs, supra, at 19-23. ↑

  30. CGC Chapters 3-5. For other examples, see generally Segall, supra. ↑

  31. Stephen E. Sachs, Originalism: Standard and Procedure, 135 Harv. L. Rev. 777 (2022). ↑

  32. Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849 (1989). ↑

  33. Adrian Vermeule, Gnostic Constitutional Theory, Ius et Iustitium. Baude and Sachs show they misunderstand this point as well in their discussion of the treatment of slavery in the classical legal tradition. The Roman lawyers were entirely clear that slavery violated the natural law, even if it was permitted by the civil law and the law of nations. See, e.g., Digest of Justinian (Alan Watson tr.) 12.6.64 (“freedom is the condition of natural law and subjection the invention of the law of the world”); 50.17.32 (“As far as concerns the civil law slaves are regarded as not existing, not, however, in the natural law, because as far as concerns the natural law all men are equal.”). Baude and Sachs think this discrepancy between natural and positive law shows that “a legal system’s explicit commitment to the common good is no guarantee of achieving it, any more than an explicit commitment to originalism is a guarantee of achieving that instead.” Baude & Sachs, supra note, at 18-19. It should go without saying that no legal theory can guarantee anything. The classical approach, however, at least provided an account of when the rules of the civil law or law of nations violated higher law, and how lawyers could discern that violation, which is what allowed natural lawyers such as Martin Luther King, Jr. to invoke the natural law to critique slavery, segregation and other forms of profound injustice. See, e.g., Letter from Birmingham Jail (1963) (“To put it in the terms of St. Thomas Aquinas, an unjust law is a human law that is not rooted in eternal and natural law.”). (Presumably Baude and Sachs think this was simply bad jurisprudence.) By contrast, if originalism is merely a standard of correctness with no implications whatsoever as a decision procedure, it cannot claim to provide even that much. ↑

  34. Atiq & Mathews, supra note, at 25. ↑

  35. Jonathan Gienapp, Written Constitutionalism, Past and Present, 39 Law and History Review 321, 324 (2021). ↑

  36. See Michael Foran, A Great Forgetting: Common Law, Natural Law, and the Human Rights Act (draft on file with author). ↑

  37. Baude and Sachs, supra, at 25. ↑

  38. See, e.g., Antonin Scalia, ’Judicial Deference to Administrative Interpretations of Law’, Duke Law Journal 511, 515 (1989) (“the “traditional tools of statutory construction” include not merely text and legislative history but also, quite specifically, the consideration of policy consequences. Indeed, that tool is so traditional that it has been enshrined in Latin: “Ratio est legis anima; mutata legis ratione mutaturet lex.” (“The reason for the law is its soul; when the reason for the law changes, the law changes as well.”)). ↑

  39. CGC 214. ↑

  40. John Finnis, “Natural Law Theories”, Stanford Encyclopaedia of Philosophy (June 3, 2020), https://plato.stanford.edu/entries/natural-law-theories [https://perma.cc/KG3R-SNBX]. ↑

  41. Ibid. ↑

  42. Ibid. ↑

  43. CGC 9-11. ↑

  44. See Richard. H. Helmholz, “Natural Human Rights: The Perspective of the Ius Commune,” 52 Catholic University Law Review 301, 318 (2003). ↑

  45. Baude & Sachs, supra, at 10-13. ↑

  46. CGC 9-11. ↑

  47. This subsection is written with the help of Conor Casey; with his permission, it incorporates and adapts material from his forthcoming treatment of Finnis’ constitutional thought. See Conor Casey, ”Classical Natural Law and Constitutional Theory: A Tour of the Thought of John Finnis“ (July 2022) (Manuscript on file with author). ↑

  48. Baude & Sachs, supra, at 37-38, 40. ↑

  49. John Finnis, Natural Law and Natural Rights, (2nd ed. Oxford University Press, 2011) 473. ↑

  50. John Finnis, Natural Law and Legal Reasoning 38 Clev. St. L. Rev. 1, 12 (1990). ↑

  51. John Finnis, Natural Law Theories, Stanford Encyclopaedia of Philosophy (June 3, 2020), https://plato.stanford.edu/entries/natural-law-theories [https://perma.cc/KG3R-SNBX]. ↑

  52. Ibid. ↑

  53. Ibid. ↑

  54. Ibid. ↑

  55. Finnis, Natural Law and Legal Reasoning, supra, 11. ↑

  56. Finnis, Natural Law and Natural Rights, supra, 290. ↑

  57. John Finnis, “A Grand Tour of Legal Theory“, Philosophy of Law: Collected Essays Volume IV (Oxford University Press, 2011) 153. ↑

  58. John Finnis, ”Priority of Persons,” Intention and Identity: Collected Essays Volume II (Oxford University Press, 2011) 19, 26- 27. ↑

  59. Ibid, 33. ↑

  60. In particular, Baude and Sachs offer in closing a kind of Whiggish paean to liberty rightly understood, to what they regard as the virtue of the American legal and political tradition’s dedication to individual liberty and (what I have called) precautionary constitutionalism. Baude and Sachs, supra, at 43-44. One might rightly ask what constitutional libertarianism has to do with a jurisprudential theory that professes not to be animated by any substantive view of political morality, but the two topics are clearly connected in the authors’ minds. As I have written extensively on this topic elsewhere (see, e.g, Adrian Vermeule, The Constitution of Risk (2013)), I will merely leave it to readers to decide whether America’s grievous political and economic ills – from staggering inequality to widespread deaths of overdosing and despair, spasms of gun violence, decaying infrastructure, declining life expectancy, and the breakdown of the traditional family – are entirely incidental to valorizing individual autonomy and constraining public authority to act for the public welfare, or instead a predictable consequence of those commitments. ↑

Published by Adrian Vermeule