In the Federalist Society Review, Judge William Pryor: Against Living Common Goodism (adapted from a speech Judge Pryor delivered at the Federalist Society’s 2022 Ohio Chapters Conference). From the introduction (footnotes omitted):
I want instead to address a kind of results-oriented jurisprudence that is indistinguishable in everything but name from Justice Brennan’s living constitutionalism: Harvard Law Professor Adrian Vermeule’s so-called common-good constitutionalism—a variant of what I call living common goodism. Vermeule’s approach, in his words, “take[s] as its starting point substantive moral principles that conduce to the common good, principles that [judges] . . . should read into the majestic generalities and ambiguities of the written Constitution.” Replace “common good” with “human dignity” and Vermeule’s living common goodism sounds a lot like Brennan’s living constitutionalism. Indeed, the difference between Brennan’s living constitutionalism and Vermeule’s living common goodism consists mainly in their differing substantive moral beliefs; in practice, the methodologies are the same.
Although I disagree with Vermeule’s view, it would be a mistake to dismiss it out of hand. To be sure, there is little evidence that many judges or lawyers have been persuaded by Vermeule but his view is being taken seriously by at least some law students. And because the history of the Federalist Society proves that minority views can become prevailing ones, we should take seriously even mistaken views like living common goodism. So I want to explain why Vermeule’s view is mistaken.
The Constitution does not give judges the power to “read into” the text of the Constitution “substantive moral principles that conduce to the common good.” And fashioning that kind of jurisprudence would conflict with natural law. As Professor Robert George has explained, when courts exceed their jurisdiction and usurp “legislative authority,” whether for good or bad causes, “they violate the rule of law by seizing power authoritatively allocated by the framers and ratifiers of the Constitution to other branches of government.”
Within the bounds of the constraints it imposes, the natural law is neutral about the kind of constitution that a people can establish to promote the common good. Like the ancient moral philosophers, the Founders understood that power corrupts. They gave the judiciary and other branches limited powers within separate domains for protecting the common good. They recognized, as Professor George put it, that “natural law itself does not settle the question . . . whether it falls ultimately to the legislature or the judiciary in any particular polity to insure that the positive law conforms to natural law and respects natural rights.” And as Professor Vermeule acknowledges, “the common good does not, by itself, entail any particular scheme of . . . judicial review of constitutional questions, or even any such scheme at all.”
The only question for judges is the scope of their power under our Constitution. As Professor Joel Alicea recently explained in his excellent article refuting living common goodism, an enacted text is morally binding according to the natural-law tradition “only insofar as it is both . . . substantively consistent with the natural law and . . . promulgated by a legitimate authority.” Judges committed to that tradition have already determined for themselves that the Constitution accords with natural law and has been promulgated by a legitimate authority, or else they would not have taken an oath to support it. As far as I can tell, Vermeule is not advocating for a revolution of our constitutional order. So we must ask whether our Constitution gives judges the power to “insure that the positive law conforms to the natural law” by departing from original meaning; if it does not, then a judge who purports to exercise that power has transgressed the natural law by going “beyond the power committed to him.”
The nature of our written Constitution conflicts with living common goodism because, as Professor Chris Green points out, our Constitution refers to itself as a written text situated at a fixed time in history. Consider just a few examples. The Preamble identifies our Constitution with the text: the People “ordain[ed] and establish[ed] this Constitution for the United States of America.”Article II declares that “[n]o Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President.”Article III extends the “judicial Power . . . to all Cases, in Law and Equity, arising under this Constitution,” as distinguished from those arising under distinct bodies of law—federal statutory law and treaties. Article VI likewise distinguishes “[t]his Constitution” from the rest of the law that composes “the supreme Law of the Land.” And it requires that “judicial Officers” be “bound by Oath” to “support this Constitution.” So unlike Britain’s unwritten constitution, our Constitution is a written text that expressed its meaning “at the time of [its] Adoption.”
Posted at 6:34 AM