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- Herausgeber: John Wiley & Sons
- Kategorie: Geisteswissenschaft
- Sprache: Englisch
The way that Americans understand their Constitution and wider legal tradition has been dominated in recent decades by two exhausted approaches: the originalism of conservatives and the "living constitutionalism" of progressives. Is it time to look for an alternative? Adrian Vermeule argues that the alternative has been there, buried in the American legal tradition, all along. He shows that US law was, from the founding, subsumed within the broad framework of the classical legal tradition, which conceives law as "a reasoned ordering to the common good." In this view, law's purpose is to promote the goods a flourishing political community requires: justice, peace, prosperity, and morality. He shows how this legacy has been lost, despite still being implicit within American public law, and convincingly argues for its recovery in the form of "common good constitutionalism." This erudite and brilliantly original book is a vital intervention in America's most significant contemporary legal debate while also being an enduring account of the true nature of law that will resonate for decades with scholars and students.
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Seitenzahl: 443
Veröffentlichungsjahr: 2022
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CONTENTS
Cover
Endorsements
Title Page
Copyright
Acknowledgments
Introduction: The Return of the Classical Legal Tradition
Rational Ordering for the Common Good
An Interpretive Argument
The Common Good Defined
The Role of Prudence
Determination – Of the Constitution and Within the Constitution
General and Particular Claims
Courts and the Common Good
Abuse of Power?
The Common Good and “the Common Good”
Competitors to the Classical Tradition
Vices and Virtues
Shibboleths Dispelled
Plan of the Book
Scope and Ambitions
Notes
1 The Common Good Defined
Antonyms of the Common Good
The Positive Common Good in Politics and Law
The Common Good in Law
A Framework, Not a Blueprint
Common Good Constitutionalism
Moral Readings of the Constitution
Who Decides?
A Note on “Democracy”
The Constitution of Risk and “Abuse of Power”
Notes
2 The Classical Legal Tradition in America
American Law as Classical Law: An Overview
Lochner v. New York
Riggs v. Palmer
Curtiss-Wright and the Ius Gentium
The Classical Tradition as Our Law
Notes
3 Originalism as Illusion
Context of Discovery
Context of Justification
Dworkin’s Critique
Living Originalism
Examples
Hybrid Views
Notes
4 Progressive Constitutionalism and Developing Constitutionalism
The Liturgy of Progressive Constitutionalism: Obergefell and Its Aftermath
Instrumentalized Law
Developing Constitutionalism
Newman and the Development of Doctrine
A Model Opinion
Human Rights Without Progressivism: A Model Declaration
An Anti-Model
Notes
5 Applications
A. The Administrative State: The Living Voice of the Law
B. Subsidiarity and Solidarity: “A Giant’s Strength”
C. Rights and the Common Good
Notes
Conclusion
Notes
End User License Agreement
Guide
Cover
Table of Contents
Endorsement
Epigraph
Title Page
Copyright
Acknowledgments
Introduction: The Return of the Classical Legal Tradition
Begin Reading
Conclusion
Index
End User License Agreement
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“Elegant, insightful, magisterial: Adrian Vermeule has written an instant classic of scholarship, exposing the poverty of today’s prevailing legal theories, left and right, and pointing us to a better alternative – one as vibrant and radical as the Western tradition.”
Sohrab Ahmari, author of The Unbroken Thread and From Fire, by Water
“You are holding that rarest of books, one that will change minds, change the terms of debate, and change the future. Adrian Vermeule has written the most important and original book on constitutional theory for this generation. Future scholars, lawyers, and citizens will look back at this book for having sounded the death knell of the seemingly unassailable camps of conservative ‘originalism’ and progressive ‘living constitutionalism,’ revealing them to be exhausted sides of the same devalued liberal coin. More importantly, this book charts a new and better path – a common good constitutionalism grounded in the classical tradition but repurposed for the revitalization of a declining but redeemable republic.”
Patrick J. Deneen, University of Notre Dame, author of Why Liberalism Failed
“This is the most important book of American constitutional theory in many decades. Adrian Vermeule unearths the entirely forgotten classical legal tradition – a mix of Roman law, canon law, and civil law – which dominated judicial thinking from the founding until positivism began to consume constitutional law in the early twentieth century. He exposes the dominant originalist paradigm as an impoverished Johnny-come-lately to the constitutional scene. And he powerfully demonstrates how the classical legal tradition’s central idea – promotion of the common good – can inform contemporary public law thinking to promote community flourishing, both domestically and globally. Common Good Constitutionalism is a bolt from the blue that challenges conservative and progressive constitutional law paradigms alike. It is destined to infuriate, and to reorient.”
Jack Goldsmith, Learned Hand Professor of Law, Harvard University
“This bold and provocative book challenges the views on constitutional interpretation of both US conservatives and liberals, and reframes the debate by focusing on a substantive concept: the common good. With his characteristic originality and ability to weave the insights of different disciplines, Vermeule puts forward a thought-provoking account of the common good and its legal implications, one which will be of relevance well beyond American debates. Even those who disagree with it will have much to learn from this erudite engagement with one of the main concepts in political thought.”
Francisco J. Urbina, Pontificia Universidad Católica de Chile
[I]t is impossible that there can be a right which does not aim at the common good. Hence Cicero is correct when he says in the De inventione that laws are always to be interpreted for the benefit of the community. For if laws are not framed for the benefit of those who are subject to the law, they are laws in name only, but in reality they cannot be laws; for laws must bind men together for their mutual benefit.Dante Alighieri, De Monarchia (Prue Shaw, trans. and ed.)
The praetor is also said to render legal right (jus) even when he makes a wrongful decree, the reference, of course, being in this case not to what the praetor has done, but to what it is right for a praetor to do.Digest of Justinian 1.1.11 (Alan Watson, trans.)
Common Good Constitutionalism
Recovering the Classical Legal Tradition
Adrian Vermeule
polity
Copyright © Adrian Vermeule 2022
The right of Adrian Vermeule to be identified as Author of this Work has been asserted in accordance with the UK Copyright, Designs and Patents Act 1988.
First published in 2022 by Polity Press
Excerpt from Dante Alighieri, De Monarchia (Prue Shaw, trans. and ed.; 1995), reproduced by kind permission of Cambridge University Press.
Excerpt from Digest of Justinian 1.1.11 (Alan Watson, trans.; 1985, revised edition 1998), reproduced by kind permission of University of Pennsylvania Press.
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ISBN-13: 978-1-5095-4888-0
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Library of Congress Control Number: 2021946341
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Acknowledgments
My debts are many and heavy. First and foremost to my family, Yun Soo, Emily, Spencer, Auntie, Oma, and Bella, who tolerate my foibles and my Amazon addiction. George Owers provided superb editorial guidance and substantive comments at all stages, especially by overcoming my obdurate resistance on the title. For excellent comments on all or part of the manuscript, I am most grateful to Rishabh Bhandari, Conor Casey, Jack Goldsmith, Pedro Jose Izquierdo, Suzanne Smith, William Strench, and three anonymous reviewers. Prof. Casey has been an intellectual companion on this journey and I’ve been fortunate to learn from him during our co-authored projects. Suzanne Smith straightened my tortured outline and Will Strench provided outstanding research assistance of all sorts, and I can’t thank them enough. Dave Owen provided valuable help with the notes.
For more general conversations, insights, and scholarship that infuse the book, or for encouragement and support of the project, thanks and appreciation go to many friends and colleagues, including all those mentioned above and also Sohrab Ahmari, Rafael de Arizaga, Evelyn Blacklock, Evelyn Boyden, Patrick McKinley Brennan, Ricardo Calleja, Yves Casertano, Amy Chandran, Patrick Deneen, Tyler Dobbs, Catherine Feil, Joel Feil, Robin Fennelly, Michael Foran, Jose Ignacio Hernandez Gonzalez, Fr. Carlos Hamel, Fr. Jeff Langan, Fr. Brendon M. Laroche, Jamie McGowan, Ryan Meade, Xavier Menard, Maria Messina, Eli Nachmany, Jake Neu, Fr. Cristian Mendoza Ovando, Christopher Owens, Gladden Pappin, Jeanette Pappin, Christopher Parrott, Darel Paul, Chad Pecknold, Amanda Piccirillo, Anthony Piccirillo, Anibal Sabater, Patrick J. Smith of Bedford, Indiana, Francisco Urbina, Pater Edmund Waldstein, Dan Whitehead, and participants at the Pro Civitate Dei Conference 2021.
At various points, I have heavily adapted excerpts from past articles or blog posts for use in the book. Besides entries on the law blogs Ius & Iustitium and Mirror of Justice, these include Common-Good Constitutionalism, THE ATLANTIC (March 31, 2020); Rules, Commands and Principles in the Administrative State, 130 YALE LAW JOURNAL FORUM (Jan. 6, 2021); and The Unitary Executive: Past, Present, Future, SUPREME COURT REVIEW (2021) (with Cass R. Sunstein). Thanks to the co-author of the last for his gracious permission to adapt some material for the book.
Introduction: The Return of the Classical Legal Tradition
American public law suffers from a terrible amnesia. Putting aside the work of a few legal historians and other specialists, our law has all but lost the memory of its own origins and formative influences in the classical legal tradition – particularly the ius commune, the classical European synthesis of Roman law, canon law, and local civil law.1 The ius commune was heavily influential in England, in a somewhat variant form;2 both English and continental streams influenced Americans right from the beginning, throughout the nineteenth century and well into the twentieth.
The consequence of this amnesia is that our public law now oscillates restlessly and unhappily between two dominant approaches, progressivism and originalism, both of which distort the true nature of law and betray our own legal traditions. Against both camps, I argue for a view I will call common good constitutionalism. On this view, the classical tradition should be explicitly recovered and adapted as the matrix within which American judges read our Constitution, our statutes, and our administrative law. The centerpiece of the classical legal tradition is that law should be seen as a reasoned ordering to the common good, the “art of goodness and fairness,”3 as the Roman jurist Ulpian put it – an act of purposive and reasoned rulership that promotes the good of law’s subjects as members of a flourishing political community, and ultimately as members of the community of peoples and nations. Accordingly, the master principle of our public law should be the classical principle that all officials have a duty, and corresponding authority, to promote the common good – albeit in a manner consistent with the requirements of their particular roles, an important qualification to which I shall often return.
This classical conception embodies the best of our own tradition, the union of well-ordered reason with public authority. And if anything has a claim to capturing the “original understanding” of the Constitution, this does. The classical law is the original understanding. In that sense, this book is as much a work of memory and recovery as of theory. So-called “originalism,” which in its elaborated theoretical form is a product of the conservative legal movement’s particular political and rhetorical situation after World War II, is profoundly anachronistic, indeed counter-originalist.4 The classical law was deeply inscribed in our legal traditions well before the founding era, and was explicit in legal practice through the nineteenth century and into the twentieth century. Indeed, the classical vision was central to the American legal world until it began to break down, initially in the period before World War I and finally after World War II. The precise timing is immaterial for my purposes, but it is clear that by the 1960s a radical shift had occurred. The so-called “Legal Process” school,5 which emphasized law as a purposive ordering, represented a last iteration of the classical legal tradition but in a thin, impoverished version, bereft of the rich background of tradition and principle worked out over many centuries by the ius commune. The classical tradition, by contrast, is robust. It openly embraces the view that law is ordered to the common good, explains why it is law’s nature to be so ordered, and claims that the positive law based on the will of the civil lawmaker, while worthy of great respect in its sphere, is contained within a larger objective order of legal principles and can only be interpreted in accordance with those principles.
I certainly do not advocate a revival of the classical law because it is the original understanding. The suggestion is not that, as good originalists deep down, we should adopt the view of the classical legal tradition in a derivative fashion. As we will see, all attempts to combine originalism with the classical view of law are ultimately incoherent, an attempt to mix oil and water. On the contrary, precisely to the extent that American lawyers are genuinely originalist, they should have the courage to discard originalism altogether in favor of the classical law, the fundamental matrix for the thinking of the whole founding generation. The truly principled originalist would immolate his own method and transform himself into a classical lawyer, in an act of intellectual self-abnegation and self-overcoming.
Of course a simple return to the classical legal tradition and its particular legal rules is neither desirable nor even possible. Even were that feasible, which it is not, one would risk simply recreating the conditions that caused the present to come into being. But the core theoretical insights and jurisprudential principles of the classical legal tradition can be recovered, adapted and translated6 into our world, so as to yield a better interpretation of the past and present of our operative constitutional order. Those insights are scarcely so remote as to preclude recovery; in fact, they are close at hand, if obscured from our current vision. Key elements of the classical view of law remain vital within our law, even as lawyers and judges have ceased to defend or even recognize them.
Rational Ordering for the Common Good
In the classical tradition, law is seen as – in Aquinas’ famous definition7 – an ordinance of reason for the common good, promulgated by a public authority who has charge of the community. Law is seen as intrinsically reasoned and also purposive, ordered to the common good of the whole polity and that of mankind. Classical law treats enacted texts as products of the reasoned deliberation of public authorities who give specific content to the law where background legal principles need specificity or leave relevant issues to discretionary choice. Where at all possible, classical law reads the law of a particular jurisdiction (the ius civile) in light of the ius gentium (the law of nations or peoples) and the ius naturale (natural law), which the civil positive law is taken to specify or “determine” within reasonable boundaries. General principles of law might, for example, say that, at some point, peace and order require that potential defendants should have repose from the risk of being sued; it would then be up to the civil law in such an instance to determine a specific statute of limitations and to resolve the many questions that flow from it.
Put differently, the classical tradition distinguishes, as many European languages do, between two senses of “law,” lex and ius.(In Spanish, ley and derecho; in French, loi and droit; and so on. English, to its misfortune, has no stable version of this distinction and instead uses “law” and “right(s)” in confusing ways.) Lex is the enacted positive law, such as a statute. Ius is the overall body of law generally, including and subsuming lex but transcending it, and containing general principles of jurisprudence and legal justice. Thus lex is a source of ius but does not exhaust its content. In this tradition, “rights” very much exist, but they are not defined in the essentially individualist, autonomy-based, and libertarian fashion familiar today. Instead “rights” are corollaries of justice, which is the constant aim of giving every man his due. Ius is what is due to every person, and in this sense, but only this sense, includes rights. In the classical tradition, both natural and positive are, in somewhat different ways, themselves included within law’s larger ordering to the common good.
Today both progressives and originalists either deny the existence of the natural law altogether (the usual progressive view), or deny its relevance to law except in strictly historical terms, as a background belief potentially incorporated into the law laid down by the framers and ratifiers (the now-standard originalist view). Both camps therefore attempt, in different ways, to reduce all law to positive law adopted by officials; for them, all law is in this sense lex. But just because ius is lost to view does not mean that it has actually been purged from American law – far from it. The classical vision of law as a rational ordering to the common good, embedded in a broader framework of legal principles, has merely been driven underground. Judges and others unavoidably and unmistakably work with some account or other of the common good and of law’s ordering to that good. We will see this point over and over again, in disparate areas.
An Interpretive Argument
How does this classical view of law relate to constitutional theory today? I will not offer an argument about jurisprudence in the technical academic sense. Although I draw on jurisprudential ideas as necessary, I have nothing original to say in that regard.8 Neither is this a work of legal history, although I draw on legal history done by others in order to recover the powerful tradition of the common good in American law. Finally, it is not a work of political theory.
Rather it is written throughout from the lawyer’s point of view, as a work of interpretation. From that point of view, I offer an account that aims to put our constitutional order, including the administrative state, in its best possible light, given our whole history – not merely our most recent history. As against the progressives and originalists, I suggest that the best overall interpretation overall of our public law requires us to revive the principles of the classical law, looking backward so that we may go forward. It is a case of reculer pour mieux sauter. In terms made famous by Ronald Dworkin,9 the last few chapters of the chain novel are impossible to square with the arc of what went before. They mar the integrity of the whole, and offer a poor account of our operative constitutional order. The point is not to reclaim the insights of the classical tradition out of nostalgia, but because doing so holds out the greatest promise for a principled and coherent interpretation of our current constitutional order as well as its history.
It does not follow, of course, that the interpretation I offer need be parochial or ignore the contributions of legal traditions outside the United States. Indeed my project is quite the opposite: it is to recover and revive the profound connections between the classical American tradition on the one hand, and on the other the classical Roman and European tradition, the ius commune, the latter definitely including the Anglo-American common law as a local variant. The book thus has both a general part and a particular part – a duality that is itself typical of the classical legal framework. It speaks both to general principles of common good constitutionalism and to the specific institutions of the American constitutional order. As such I hope it is of interest to lawyers in the Commonwealth nations, Europe, Latin America, and Asia as well.
Methodologically, this work of interpretation draws not only upon the classical and natural law tradition10 but also, in limited ways, upon the parts of Dworkin’s jurisprudence that are consistent with the classical view of law and that explain and illuminate the latter’s commitments. The principal use I make of Dworkin is negative, invoking him as the unsurpassed modern critic of positivism and originalism in Anglophone legal theory. In my view those withering criticisms have never successfully been answered.11 I illustrate those criticisms of both positivism and originalism with examples from legal and judicial practice: law itself contains general principles,12 rooted in political morality, whose origins do not seem to depend on any particular act of positive lawmaking; positivism and originalism cannot account for theoretical, as opposed to historical, disagreement in interpretation;13 and originalism has never successfully coped with the problem of abstraction, the question of the level of generality at which to read the original understanding.14
Dworkin used to urge “moral readings of the Constitution,”15 implemented through his method of fit and justification.16 Common good constitutionalism shares the view that the positive provisions of the ius civile, including at the constitutional level, can only be interpreted in light of principles of political morality that are themselves part of the law. And it urges that the classical law is the best of our tradition, with the emphasis on both “best” (justification) and “tradition” (fit). But it advocates a different set of substantive moral commitments and priorities and a different account of rights from Dworkin’s, which were all of a conventionally left-liberal and individualist bent. I emphatically eschew Dworkin’s particular, substantively liberal account of justification, which I will take to be detachable. While interpretation necessarily posits some account or other of justification, it need not posit Dworkin’s own account. I reject his liberal theory of rights, as trumps over collective interests, in favor of a classical theory of rights as ius, founded in the injunction of justice to give to every person what is due to them in a political order devoted to the common good.17
In general, nothing in my claims turns on narrow and elaborate debates among professional scholars of jurisprudence about the details and development of Dworkin’s thought. I use those of his ideas that have already become part of the common currency of legal theory, in part because they simply describe with great clarity things that are undeniably a part of law (for example, the ubiquity of legal principles). Not coincidentally, those are the ideas that fit like a glove with the classical conception of law that prevailed in America for so long.
The Common Good Defined
Chapter 1 defines the common good, at successively specific levels – conceptually, legally, and constitutionally. In brief, the common good is, for the purposes of the constitutional lawyer, the flourishing of a well-ordered political community. The common good is unitary and indivisible, not an aggregation of individual utilities. In its temporal aspect it represents the highest felicity or happiness of the whole political community, which is also the highest good of the individuals comprising that community.
To give this more specific content, I look to the precepts of legal justice in the classical law – to live honorably, to harm no one, and to give each one what is due to him in justice – and to the related ragion di stato tradition in early modern Europe, which articulates the central goods at which constitutionalism should aim. These goods include, in a famous trinity, peace, justice, and abundance, which I extrapolate to modern conditions to include various forms of health, safety, and economic security. I also elicit from the tradition the key principles of solidarity and subsidiarity.18
The largest point of the tradition is that public authority is both natural and legitimate – rather than intrinsically suspect, as one might infer from certain strands of the liberal tradition. Yet that authoritative rule is bounded and limited by the very condition that gives it legitimacy: that the ruling authority always act through reasoned ordinances conducing to the common good, to public rather than private interest. As we will see, the requirement of reasoned and public-regarding rule leaves ample scope to adjust the law to changing circumstances, but the fundamental nature of law as reasoned ordination to the common good is unchanging.
Common good constitutionalism, then, is not legal positivism, meaning that it does not identify all law with the rules laid down by those authorized to do so by social conventions; on the contrary, it allows that the truth of legal propositions sometimes depends on the truth of moral propositions. Common good constitutionalism draws upon an immemorial tradition that includes, in addition to positive law, sources such as the general law common to all civilized legal systems (ius gentium) and principles of objective natural morality (ius naturale), including procedural legal morality in the sense used by the American legal theorist Lon Fuller: the inner logic that the activity of law should follow in order to function well as law.19
Here it is easy to misunderstand the place of positive law in the classical tradition. Positive law is hardly lacking; it represents a legitimate specification by the public authority of general principles of legal morality that need concrete embodiment, the specification of local rules that take account of local conditions, and is therefore called ius civile, literally the “law of the city.” Indeed, as we will see, the right and duty of the public authority to determine or specify the content of the positive law imply that the judges or other officials who determine the meaning of law at the point of application are duty-bound to follow a kind of textualism, at least presumptively. But this is not the positivist form of textualism that simply equates law with positive enacted texts; rather it is textualism justified by reference to political morality, the rational ordering of rules to the common good by the public authority. Thus positive enacted texts are always read against the backdrop of, and if at all possible in accord with, the broader legal background of natural law, general and traditional legal principles, and the law of nations. The classical law incorporates positive law, but rejects any commitment to positivism in a jurisprudential sense, regardless of any distinctions between harder or softer, exclusive or inclusive versions of positivism. (As explained later, I follow Dworkin in believing that inclusive versions of positivism and originalism converge entirely with non-positivism and non-originalism; they are essentially ways of saving face at the level of names and labels while abandoning all the important substantive positions.)
The Role of Prudence
The common good, on this view, is a type of justification for public action. It does not, by itself, prescribe any particular legal institutions or rules. Leaving aside cases of intrinsic evils, which place deontological side constraints on all public and private action, the common good must be applied to a set of particular circumstances by means of the faculty of prudential judgment – more specifically, the virtue that is called “regnative prudence.”20 This is the prudential judgment, oriented toward justice, of a public authority who is charged with the care of the res publica, whether by election, delegation, or some other mode of selection. This prudence is by no means unstructured discretion. It is given shape by an account of the ends for which discretion must be used, that of promoting the good of the whole community as a community – not merely as an aggregation of individual preferences. In other words, discretion may never transgress the intrinsic limitations of legal justice. The obligation of the public authority is to act according to law, meaning that the public authority must act through rational ordinances oriented to the common good.
Of course, nothing in the nature of law guarantees, or could possibly guarantee, that the public authority will in fact always act for the common good. But that is true whatever theory of law we hold; it is to demand too much of law that it exclude the possibility of bad or even tyrannical government. Rather every polity must work out for itself institutional forms and customs that orient public authority toward the common good, at least roughly and on the whole. Legal theory as such, by its nature, necessarily assumes that the prevailing order is at least not wholly tyrannical.
Determination – Of the Constitution and Within the Constitution
In the classical tradition, regnative prudence is closely linked to the concept of determination – the process of giving content to a general principle drawn from a higher source of law, making it concrete in application to particular local circumstances or problems. I will explain this crucial concept in detail in Chapter 1. Briefly, the need for determination arises when principles of justice are general and thus do not specifically dictate particular legal rules, or when those principles seem to conflict and must be mutually accommodated or balanced. Those 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. By analogy, an architect who is given a general commission to build a hospital for a city possesses a kind of structured discretion. The purpose or end of the commission shapes and constrains the architect’s choices while not fully determining them; a good hospital may take a number of forms, although there are some forms it cannot take.
So too at the level of the whole constitutional order. The common good in its capacity as the fundamental end of temporal government shapes and constrains, but does not fully determine, the nature of institutions and the allocation of lawmaking authority between and among them in any given polity. Such matters are left for specification that gives concrete content to the operative, small-c constitution (which is not necessarily the same as the formal written Constitution even in polities that have the latter). Call this determination of the constitution.
This agnosticism at the level of institutions, in turn, has two aspects: agnosticism about institutional design, and about the allocation among institutions of authority to interpret the constitutional scheme. Parliamentary and presidential systems, constitutional monarchies and republics, all these and more can in principle be ordered to the common good. Likewise, the common good does not, by itself, entail any particular scheme of (for example) judicial review of constitutional questions, or even any such scheme at all. The common good takes no stand, a priori, on the well-known debate over political constitutionalism versus legal constitutionalism,21 so long as the polity is ordered to the good of the community through rational principles of legality.22
This broad agnosticism does not mean that there are no boundaries whatsoever; it just means that the boundaries are set by the nature of law itself, as an ordination of reason to the common good. Certain institutional arrangements, mostly science-fictional and horrific, will be ruled out even if no one set of arrangements is uniquely specified. But they will be ruled out because they are arbitrary and unreasoned, and thus do not participate in the nature of law, not because the common good directly commands particular institutional forms. Likewise, strictly aggregative-utilitarian arrangements will be ruled out by the non-aggregative nature of the common good, an example being a substantial class of invisible-hand arrangements justified as an indirect way of maximizing aggregate utility.23 But the ruling out of certain arrangements leaves a wide scope for choice that adapts institutional forms to local circumstances.
So far I have been talking about determination of the constitution. At another level, there is also determination within or under the constitution. Particular sets of institutions (among which authority has been allocated) give further specification to general constitutional principles of the common good, such as principles of solidarity and subsidiarity and others to be discussed here. Indeed, the process of determination is iterative and continues to ever-more detailed levels, as we will see. The legislature and executive, for example, may agree on a general statute giving some specification to a general legal principle, and in turn delegate to administrative agencies the authority to determine the general provisions of the statute. The agency may do so by a binding regulation, which may then require further interpretation, and so on.
General and Particular Claims
An important corollary is that one has to distinguish (1) general claims about constitutionalism ordered to the common good from (2) specific constructive interpretations of a given constitutional order that aim to put that order, as it develops over time, in its best light. I have called the former the general part of this book, the latter its particular part. I presuppose here, incorporating previous work by reference, a particular constructive interpretation that fits-and-justifies our own developing constitutional order. In that interpretation, the American small-c constitutional order has come to feature broad deference to legislatures on social and economic legislation and broad delegations from legislatures to the executive. In operation, moreover, lawmaking is effectively centered mainly on executive government, divided in complicated ways between the presidency and the administrative agencies (including both executive agencies and independent agencies). The executive and administrative state can and does act according to the rule of law, constituted in important part by principles of regularity in lawmaking that I will discuss in later chapters. Indeed, by acting through reasoned law, our executive-centered order can be ordered to the common good.
That particular interpretation of our own constitutional order, however, is separable from the general claims about the nature and principles of constitutionalism also offered here. Agreement with the general part does not necessarily entail agreement with the particular part. One may subscribe to the general framework of common good constitutional interpretation without subscribing to the full, particular interpretation of the path of American public law that I have laid out. The failure of some commentators to distinguish general claims about the nature of constitutionalism from specific claims about the determination of the American constitutional order has produced serious confusion, and one of my aims here is to clear that up.
Courts and the Common Good
Throughout the book, I emphasize that courts need not be the institutions charged with directly identifying or specifying the common good. A division of institutional roles can, under particular circumstances, itself conduce to the common good. It is not written in the nature of law that courts must decide all legal or constitutional questions. The precise allocation of law-interpreting power between courts and other public bodies is itself a question for determination at the constitutional level.
In America, the classical tradition held that so long as determinations are made within the jurisdictional competence of public bodies, for legitimate ends, and on rational grounds, they are a matter for the public authority, not the courts. A strong legal principle of deference by courts to the determinations of legislatures was part and parcel of our law from the beginning. One of my particular claims is that our small-c constitutional order developed over time to extend this principle to the institutional presidency and administrative tribunals. Today our constitution supports the legitimacy of broad delegations to the executive,24 shaped and constrained by principles of legality that ensure that the executive acts rationally in ways ordered to the common good.25 Determination is plausibly the remote ancestor of deference in all sorts of forms that are familiar in the administrative state, such as Chevron deference26 to administrative agencies.
A corollary of the nature of determination is that the public authority – including the executive exercising delegated authority – may, without transgressing its boundaries, engage in what I have called “rationally arbitrary decisions.”27 Because determination involves specification within a range in which reason need not yield a unique answer, some element of irreducible judgment will be required. Should the statute of limitations for a given offense be ten years or fifteen? Or perhaps twelve? The law is not so sophomoric as to demand a first-order reason for the choice of one particular number over another, for it is impossible to give any such reason, at least within a reasonable range of choices. In this sense, reason itself allows a certain degree of arbitrary specification, which will thus not be coded as “arbitrary” in the legal sense for purposes of the common good framework.
Abuse of Power?
Libertarians and liberals find the classical tradition appalling or, worse, irrelevant. Both express, along varying lines, the fear that talk of “the common good” is just a shorthand for the preferences of those in power, and worry above all about abuses of power – although libertarians and liberals tend to focus on different abuses, the former worrying mostly about regulatory abuses, the latter about the imposition of public morality that constrains personal expression and elite “experiments in living.” Abuse of power is indeed an evil, and I will have a great deal to say about it in this book. But fear of the common good is mistaken in two ways, institutional and conceptual.
First, we have to take on board the insight of progressives like Dewey that power is always conserved.28 Any claim to “liberty” is a claim for a legal allocation of power to do or not to do or to prevent others from doing or not doing. Hence abuses of power are hardly confined to government actors or the state. Corporations acting under public charters, and nominally “private” actors wielding power under common-law rules of property and contract created and enforced by judges – that is, by a class of government officials – can and frequently do abuse a kind of delegated public power. It is a mistake to focus myopically on direct abuses of power by officials themselves, as opposed to indirect abuses of power made possible by the law.
Second, and more fundamentally, the common good is not “preferences” or “what I like” or “whatever the ruler imposes at whim.” It is not an aggregation of individual goods, as in utilitarianism, let alone the interests of the state apparatus, as in certain forms of “Government House utilitarianism.”29 Rather, as I discuss in Chapter 1, the common good is well-ordered peace, justice, and abundance in political community; the flourishing of the political community is also the greatest temporal good for the individual.
The last part is crucial. Libertarians, usually implicitly, read “the common good” as “the good of the collective” or, even worse, “the good of the state apparatus” and then oppose that to the good of individuals. In a utilitarian variant, they interpret the common good as the aggregate utility of individuals summed up according to some social welfare function, and then oppose this aggregate good to the rights of individuals. None of this gets at the truly common good of happiness in a flourishing political community, which is unitary, capable of being shared without being diminished, and the highest good for individuals as such.
The Common Good and “the Common Good”
In the end, every legitimate act of government works with some conception or other of the common good; that is inescapable.30 This point only becomes all the more transparent when – as often happens, especially in the administrative state – courts are called upon to construe legal provisions and clauses that speak in abstract terms of “the general welfare,” “the public interest,” or other formulations. Such provisions merely make the implicit explicit, writing the common good into the terms of the law itself. Those terms must be construed one way or another. The choices are for the court to give them a substantive construction, which will inevitably require the court to take some view or other of what counts as the public interest, or for the court to defer wholly or partly to political authorities to fill in the provisions’ content, perhaps subject to judicial review for reasonableness.
I will argue that the best of our traditions is that the courts should defer to public determination of such provisions, so long as the public authority acts rationally and with a view to legitimate public purposes: the ends of peace, justice, and abundance, and their modern extensions. Construing the “public use” language of the so-called “Takings Clause” of the Fifth Amendment (incorporated into the Fourteenth), the Court once said that “[t]he ‘public use’ requirement is thus coterminous with the scope of a sovereign’s police powers…. The Court has made clear that it will not substitute its judgment for a legislature’s judgment as to what constitutes a public use unless the use be palpably without reasonable foundation.”31 I argue that this exemplifies a well-ordered scheme of judicial review in our constitutional tradition.
Competitors to the Classical Tradition
As the last point shows, I offer not only a positive account of the common good in public law, but plenty of negative claims as well – critiques of the prominent alternatives. Today, public law and legal theory are dominated by two forces. On the one hand there is progressive constitutional law, which treats the courts as an arena for a liberationist agenda and the law as an instrument for advancing that agenda. On the other hand there is the conservative legal movement, which has largely tied itself to a particular constitutional method, “originalism” – in the version I focus on here, essentially a form of positivism that claims to interpret enacted text according to its original public meaning.32
Since its modern inception in the 1960s and 1970s, originalism has never been able to free itself from – or even to acknowledge – the implicit normative assumptions and judgments needed to attribute rationality to legal texts, to determine the level of generality at which the meaning of constitutional texts should be read, and otherwise to make sense of their terms. Thus originalism is, in that sense, an illusion; it proves impossible to avoid interpretation that rests on controversial normative judgments at the point of application, especially in hard cases. The consequence is that even putatively originalist decisions of the Supreme Court turn out to be richly interpretive, richly Dworkinian. They are shot through with implicit and explicit justification in light of claims about political morality – including, where appropriate, deference to other institutions based on political role morality.
Because no law can operate without some implicit or explicit vision of the good to which law is ordered, originalism has no natural immunity against infection from without by whatever theory of the good judges and other legal actors interpolate into the law. Unsurprisingly, then, the illusory positivism of the conservative legal movement has largely been hollowed out and taken over by a substantively libertarian constitutional vision – an extremely well-funded libertarian vision. Originalist-libertarians purport to be horrified by purposive rule for the common good even as they defend the role of common-law judges in defining and protecting property rights. They evince hostility to the administrative state, except for the parts of the administrative state that promote the smooth functioning of financial services and the broader economy, and angrily condemn any departures from the putative original understanding, except in areas such as political free speech rights for corporations, gun rights, and “takings” of property rights, in which the law propounded by conservative judges is either expressly or arguably non-originalist. On social matters, originalist judges have written expressly originalist opinions, such as the decision in Bostock v. Clayton County,33 reaching results that almost no one alive at the time of the law’s enactment would conceivably have thought desirable or even defensible. It is a strange originalism indeed that would be unanimously voted down by the enacting generation.
The larger significance of all this is methodological: both progressivism and originalism (in the version I focus on here) are positivist approaches, albeit in somewhat different ways:
[T]he terms of many debates in American jurisprudence … generally oscillate between two mostly positivistic poles: progressive moralism and conservative originalism. In the mainstream one can only choose between the revolutionary positivism of the progressive, who denies substantively the normative claims of the natural law in the name of the liberation of the individual will, and the academic, genteel positivism of the originalist, who denies methodologically the normative claims of the natural law in the name of preserving the will of semi-mythical lawgivers. The U.S. Supreme Court’s decision in Bostock v. Clayton County has revealed a late fruit of this brambled garden: progressive originalism, the method of the conservative, now perfected at the service of the progressive’s ends.34
Later I will illustrate and explain the convergence that produces an originalism indistinguishable from progressive living constitutionalism. For now, the key methodological point is just that originalism and progressivism both stand on the same side of a gulf that separates them from the classical legal tradition.
Vices and Virtues
None of this means that progressivism and originalism are wholly valueless. Just as vices may sometimes be deformations or exaggerations of virtues, so too progressivism and originalism are themselves both deformations of legitimate insights and legitimate parts of the overall scheme of classical legalism. Progressivism exaggerates the entirely legitimate idea that doctrine may develop over time, not because principles of constitutionalism change, but because circumstances do, so that the application of permanent principles in new circumstances may require a development of doctrine. Progressivism goes wrong by extending this idea to the principles themselves, proposing to update and even discard them in the service of the endless advance of human liberation. In what follows, I will distinguish legitimate development from the vices of legal progressivism.
So too, originalism rests on the entirely legitimate insight that the public authority may establish rules of municipal positive law, the ius civile, that vary from place to place and time to time, and that interpreters should respect the lawmaker’s aims and choices when they implement a reasoned determination of the civil law for the common good. The problem arises when originalism attempts to liberate itself from the larger framework of the law overall, which includes both general principles of legal justice (ius) and particular written laws (lex), and which interprets the ius civile to harmonize with the broader background principles and commitments of the legal system, including the natural law (ius naturale) and the law of nations (ius gentium).
Properly speaking, the classical approach to law is not an opponent or alternative to originalism or textualism. Rather it includes its own properly chastened versions of those ideas, because it includes the ius civile as part of a larger scheme of law, and because it respects the authority that determines the content of the positive law. Yet it also limits and orders that law, and the duties of its interpreters, by binding it to the common good. The positive civil law is a good servant, but a bad master. The classical conception of ius civile, in other words, can be summed up as positive law without jurisprudential positivism.
Shibboleths Dispelled
Beyond my positive and negative claims, a final aim of this book is to dispel some commonly heard, but erroneous, assumptions or shibboleths about common good constitutionalism.35
It is entirely question-begging to say that interpretation in the classical tradition “departs from the meaning of the text” or “substitutes morality for law.” Rather the classical tradition, in appropriate cases, looks to general principles of law and the
ius naturale
precisely in order to understand the meaning of the text, as a mode of interpretation. It claims that while there are powerful arguments of political morality to respect
lex
as law, it is also true that
lex
, precisely because it is law, must be interpreted in light of
ius
. The classical tradition thus claims that principles of political morality are themselves already part of the law and internal to it.
Relatedly, the classical tradition does not substitute “preferences” for law; it claims that there are objective principles of legal justice accessible to the reason, that it is entirely possible to “find” rather than “make” law.
36
That claim may or may not be correct, but it is utterly tendentious to take it for an entirely different claim which no one makes, that interpreters are licensed to enforce their own arbitrary “preferences.” Even purportedly positivist arguments are informed by some conception or other of the common good, and it is entirely legitimate to examine, in the light of reason, whether any given conception of the common good is a plausible one.
The classical tradition does not, at least not primarily, see the point of natural law as overriding the positive civil law (a view created by excessive focus on the natural rights strand of the classical tradition). Rather it mainly draws upon the natural law both to construe the civil law and to justify action for the common good on the part of the political authority.
The classical tradition, in itself, does not license judges in particular to rule as they see fit for the common good. It takes no
a priori
position on questions like the appropriate scope of judicial review, the exact balance between political and legal constitutionalism, or the importance of “democracy” (somehow understood) vis-à-vis judicial review. Many different institutional allocations of decision-making authority can be ordered to the common good and be consistent with it. The liberal mind finds it hard to process that the whole focus of the theory is not on advocating for particular forms of institutional technology or particular institutional arrangements, but instead on the purposes or ends to which law is aimed. A range of institutional technologies can in principle be ordered to the common good. Whether they can be so in practice is a function of particular conditions in particular constitutional orders, and thus a matter for prudential arrangement, not a matter of conceptual necessity.In our own system, judges are generally, or presumptively, bound to respect reasonable determinations in the public interest by the legislature and the executive, perhaps under legislative delegation. Again, this is not a necessary claim about constitutionalism; it is an interpretive claim about the American constitutional order. And it also happens to hold true for other constitutional orders, such as the system of European human rights law, one of whose fundamental principles is the “margin of appreciation”
37
– very roughly, an appropriate margin of discretion for member states and public authorities to decide how best to implement legal respect for human rights.
It is irrelevant that there was, is, and will be disagreement between classical lawyers over the content of the common good and the natural law, in hard cases. The same is chronically true of the positive civil law, indeed of any body of law (whether
lex
or
ius
or both) that is more than trivial. Disagreement, by itself, is neither here nor there, and it is hardly unique to the natural law or the common good. Every June, the Supreme Court gives ample illustration that a body of nine lawyers may split almost down the middle as to the meaning of positive laws, yet without undermining the belief of any of the Justices that there is nonetheless a right answer. As Richard Helmholz puts it, partial indeterminacy “is true of virtually all fundamental statements of law – Magna Carta, the Bible, the United States Constitution, for instance. They have not lost their value or forfeited their respect among lawyers despite long continued variations in the conclusions to be drawn from their contents.”
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