Discussion of the common good is circulating in the public square more than at any time in recent memory. Perhaps most of that circulation is attributable to certain participants in the so-called post-liberal discussion, especially the cadre of Catholic academics now writing at a new Substack aptly named, The Postliberal Order. The renewal of thoughtful considerations of the common good is a welcome development and shameful that our politics had so thoroughly lapsed in such considerations. It is a lapse all the more lamentable when it is remembered that founding era documents regularly invoked the common good within a broadly Protestant context—it is not some foreign, Catholic import as some suggest.
And yet, sympathizers and critics alike often wonder how the common good can be concretely ascertained by both lawmakers and judges, especially within a republican system like our own. As Chad Pecknold has observed, false notions of the common good abound, and so do false conclusions and applications. This is an especially pertinent inquiry for our present public health crisis. Not so long ago, American courts addressed that very question by connecting the common good to common sentiment. This is a relationship deeply rooted, but rarely recognized, in the inner logic of the common law as a manifestation, and interdependence, of common customs, necessities, and sentiments, to paraphrase the terse opinion, Blaisdell v. Stone (1881), from the New Hampshire Supreme Court. The same relationship also reflects the spirit of our constitutional order within the Anglo-American common law tradition.
Legislating Common Belief
To begin, we must consider the connection between the common good generally, for which legislators must legislate, and common sentiment or belief. Stated differently, how does the common belief of the populace relate, in Justice Harlan’s words from now oft-cited Jacobson v. Massachusetts (1905), to those “manifold restraints to which every person is necessarily subject for the common good”?
The Pennsylvania case, Appeal of Locke (1873) may provide the best expression of this bygone mood when it asked rhetorically, “And why shall not the legislature take the sense of the people? Is it not the right of the legislature to seek information of the condition of a locality, or of the public sentiment there?” The answer, of course, was in the affirmative. “The Constitution grants the power to legislate, but it does not confer knowledge. The very trust implies that the power should be exercised wisely and judiciously. Are not public sentiment and local circumstances just subjects of inquiry?”
This is a matter of prudence, the court explained, for “A judicious exercise of power in one place may not be so in another. Public sentiment or local condition may make the law unwise, inapt, or inoperative in some places, and otherwise elsewhere.” An echo of St. Thomas Aquinas is discernible here. The Angelic Doctor noted in the Summa Theologiae that “the common good comprises many things. Wherefore law should take account of many things, as to persons, as to matters, and as to times.” In other words, discerning the common good is to some extent contextual. In his exposition of Aquinas on this point, Brian McCall says that “Laws must be suited to the state of the community.” The condition of a particular people must always be within the lawmaker’s view.
The Pennsylvania court, albeit not quite doctrinaire Thomists, exhibited clear vestiges of the classical legal tradition in Appeal of Locke. Sensitivity to public sentiment and “local condition,” opined the court, is built into our republican system, “consistent with the genius of our free institutions, to take the public sense in many instances, that the legislators may faithfully represent the people, and promote their welfare.”
Thirty years later, during a prior pandemic era, the New York Supreme Court in Viemeister v. White (1904) concurred:
“practical legislation admits of no other standard of action for what the people believe is for the common welfare must be accepted as tending to promote the common welfare, whether it does in fact or not. Any other basis would conflict with the spirit of the Constitution and would sanction measures opposed to a republican form of government.”
(Believe it or not, there was a day when judges contemplated things beyond the “sweet-mystery-of-life.”) Likewise, Cole v. Shannon, an 1829 case from the Kentucky Supreme Court, affirmed that relative benefit of public good (e.g., a highway) depended not on individual preference but the “common good, and public sentiment.” The simple conclusion to be drawn from Locke, Viemeister, and Cole is that cognizance of the common good is a matter of prudential governance and that the essence of republican government is wrapped up in the relation between legislating for the people. So too should the courts take judicial notice of it.
Common Belief and Judicial Notice
It is well established that courts may take judicial notice of facts from outside the record. Evidence codes typically describe this category as things which are easily verified or incontrovertible and readily accepted. As Federal Rule of Evidence 201 describes it, these are “adjudicative facts” that are “generally known within the trial court’s jurisdiction” Learned treatises, encyclopedias, and almanacs are classic examples of extrinsic evidence of which courts are permitted to taken notice, primarily for the sake of efficiency and stipulations as to objective reality. But courts also often accept well-established opinions of experts on the same basis, especially in the medical and scientific fields.
For example, in Jacobson, Justice Harlan took judicial notice of the fact that smallpox was a deadly disease, had ravaged populations for centuries, and that inoculation had been generally accepted for some time as an effective means to prevent the scourge. Courts have continued to follow suit in this regard. Historically this kind of judicial notice contributed to analysis of the reasonableness of public health legislation for rational basis review, namely, whether a particular determination was reasonably believed to be effective unto the purported and justifiable ends. Courts need not consider all sides of the story, only whether the legislature reasonably selected a well-represented side to follow, reflecting some measure of common belief (e.g., that vaccines work).
However, judicial notice of extrinsic evidence of expert opinion was not the end of the line. When Justice Harlan took notice of common belief regarding the viability of smallpox inoculation he was not simply deferring to the experts. This is signaled by his citation (and partial quotation) of Viemeister. The court first reiterated the police power doctrine: sovereign states have it and necessarily so, and its power is broad but not unlimited, for it must be exhibit some cognizable connection to the common good (i.e., not merely pretextual) and be reasonably fitted thereto. The question was whether smallpox vaccination actually met this standard. The appellant in Viemeister claimed that vaccination “tend[ed] to bring about other diseases.” The court conceded that learned people and even some “physicians of great skill and repute” shared that opinion. Nevertheless,
“The common belief, however, is that it has a decided tendency to prevent the spread of this fearful disease and to render it less dangerous to those who contract it. While not accepted by all, it is accepted by the mass of the people as well as by most members of the medical profession.”
The Viemeister court then defended its reliance on the common belief, a consensus, of “the mass of the people” and most of the “medical profession.” The appellant, in turn, questioned the evidentiary source of this “common belief.” The court responded coolly, “A common belief, like common knowledge, does not require evidence to establish its existence, but may be acted upon without proof by the Legislature and the courts.” Notice of common belief was a matter of discretion, to be exercised with care and according to trustworthy sources. Then the court explained the nature of common belief as tied to the context of the forum and jurisdiction:
“Common belief in order to become such common knowledge as to be judicially noticed by us must be common in this state, although in a matter pertaining to science it may be strengthened somewhat by the general acceptance of mankind.”
“The fact that the belief is not universal is not controlling, for there is scarcely any belief that is accepted by everyone. The possibility that the belief may be wrong and that science may yet show it to be wrong, is not conclusive; for the Legislature has the right to pass laws which, according to the common belief of the people, are adapted to prevent the spread of contagious diseases.”
As mentioned already, Justice Harlan picked up on this same principle in Jacobson: “What everybody knows the court must know, and therefore the state court judicially knew, as this court knows, that an opposite theory accords with the common belief, and is maintained by high medical authority.”
Common Belief and Common Religion
Moving away from public health issues, the same reasoning was employed early in the American republic to justify prosecution of blasphemy, Sabbatarian restrictions, and the management of public morality according to Christian standards as part of the common law. Why? Stuart Banner has identified several reasons, but the most enduring justification was what we might refer to as the reality of cultural Christianity. Christianity was, in fact, the predominate religion of the people. It represented the common moral sentiment that legislatures and courts, therefore, were bound to consider and integrate into law.
For instance, in State v. Chandler (Del. 1837), Chief Justice Clayton referred to the common law as nothing more than “common reason or usage” and, quoting Lord Coke, designated it the “preserver of the common peace of the land.” Contra Thomas Jefferson, whom Clayton castigated with evident glee, the old maxim, first announced by Sir Matthew Hale in Taylor’s Case(1676), that Christianity is part of the common law was true. Accordingly, punishment for blasphemy against Christianity was proper. Insofar as certain “divine precepts” had been integrated into statutory law, violation thereof became a “public wrong.” But more importantly, “every court in a civilized country is bound to notice in the same way, what is the prevailing religion of the people.” Delaware (and America) being demonstrably Christian, in the general sense that Updegraph v. Commonwealth (Pa. 1824) described, it was a disruption of the common peace and order to openly revile Christianity or propagate blasphemy. (This was the same logic of People v. Ruggles (N.Y. 1811).) Just as “[the common law of England] took cognizance of, and gave faith and credit to the religion of Christ, as the religion of the common people,” so too should American courts.
Hence, Mohney v. Cook (Pa. 1855), upholding Sabbath laws, maintained that Christian institutions were entitled to respect because Christianity was “involved in our social nature” so much so that even non-Christians could not “reject those sentiments, customs, and principles which it has spread among the people… like the air we breathe, they have become the common stock of the whole country, and essential elements of its life.” It was absurd to think that a predominantly Christian people would not seek out ways to honor their customary day of rest: “That sentiment that sustains it must find expression through those who are elected to represent the will of their constituents.”
That this was also the rationale of the court in Chandler is proven by its subsequent dicta, which reads like a Psalm of lamentation: “If in Delaware the people should adopt the Jewish or Mahometan religion, as they have an unquestionable right to do if they prefer it, this court is bound to notice it as their religion, and to respect it accordingly.”
The common religious belief and common moral sentiment was, to the Chandler court, intricate to maintenance of the common peace and tranquility of society and inherent in communal rights of self-government. This conception is part and parcel of the common law. As Chancellor Kent said in defense of his Ruggles decision at New York’s Constitutional Convention in 1821, “The common law… is the application of common reason and natural justice to the security of the peace and good order of society.” In this way, when prior courts invoked common sentiment or common belief they were, by extension, invoking the public or common reason, calling legislatures to pass laws in accordance therewith. By extension, courts implicitly acknowledged that legal meaning was predicated on more fundamental public morality.
Common Sentiment and Common Tradition
This basic assessment, the judicial notice of common sentiment, beliefs, traditions, etc., has not been totally absent in more recent days. As in prior times, in less urgent scenarios than that of a pandemic, the common sentiment analysis takes on a different tenor. In the case of public morals, for instance, the opinions of immediate, living citizens are not considered alone. Rather, the deep-seated, historical traditions of the community, especially those enshrined in expressions of fundamental law, are more dipositive—an almost Burkean approach.
This mode of analysis was even once expressed in the early days of the same-sex marriage debate. In 2002, the Massachusetts Superior Court (Goodridge v. Department of Public Health) wrote that, “Massachusetts has recognized as fundamental those rights that are deeply rooted in the Commonwealth’s history and tradition,” and “[m]arriage is deeply rooted in the Commonwealth’s history and tradition.” But not just any form of marriage was so rooted. Rather, the traditional limitation of marriage to a man-woman union was established in Massachusetts “legal tradition and practice,” stretching back to laws adopted shortly after 1780. Although public attitudes toward marriage were changing, said the court, contemporary, nascent sentiments were not yet dominant, nor had they achieved a comparable historic pedigree as traditional marriage conception.
“Based on the history discussed above and actions of the people’s elected representatives, this court cannot conclude that ‘a right to same-sex marriage is so rooted in the traditions and collective conscience of our people that failure to recognize it would violate the fundamental principles of liberty and justice that lie at the base of all our civil and political institution. Neither … is a right to same-sex marriage … implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if it were sacrificed.’”
The Superior Court was overruled by the Supreme Judicial Court the next year by a narrow 4-3 decision, and marriage licenses were issued by the Department of Public Health to same-sex couples in 2004. Of course, the rest of the story of gay marriage and the courts culminating in Obergefell v. Hodges (2015) is well known. (By that point, the contemporary sentiment had substantially shifted.) The point is not so much the result of the 2002 Goodridge decision but the endurance of the type of considerations in focus here, highlighting the historical scope of the approach.
Limits to Deference and Sentiment
In the sense just described, the common good, judicially noticed according to common sentiment, serves as a limiting principle on legislative authority despite the significant deference afforded state legislatures in this regard. When such determinations are contrary to the common good and, by extension, common sentiment (or common reason) as perceived by a court, they can be overturned, for the same reasons that Chandler upheld punishment of anti-Christian blasphemy. The court in Mamlin v. Genoe (Pa. 1941), writing well into the twentieth century, expressed this well:
“It is only when a given policy is so obviously for or against the public health, safety, morals or welfare that there is a virtual unanimity of opinion in regard to it, that a court may constitute itself the voice of the community in so declaring. There must be a positive, well-defined, universal public sentiment, deeply integrated in the customs and beliefs of the people and in their conviction of what is just and right and in the interests of the public weal.”
Undergirding this reasoning is the classic axiom (derived from Cicero’s De Legibus), salus populi suprema lex esto (“the welfare of the people should be the highest law”), broadly conceived and synonymous with the common good and repeatedly referenced by courts throughout the nineteenth century. Respect for common sentiment, as stated, is intertwined with upholding the common peace, as well as principles of subsidiarity within a republican polity.
Another obvious check on legislative determinations is fundamental law which, per John Eusden, in the seventeenth century referred to something like well-established common law privileges, immunities, rights, and norms—or as Ralph Clover described it, immemorial custom—but later was more closely tied to the Constitution as Justice Harlan did in Atkin v. Kansas (1903).
Common Sentiment and Lawmaking
Obviously, common sentiment is not totally static; neither is the common law or scientific and medical consensus, for that matter. Potential for flux, and especially variation in law from one political community to the next (e.g., states), should not induce panic or diminish confidence in law itself. Indeed, this dynamic and the interdependence between common sentiment or belief and the common good connects back to the very essence of human lawmaking in context.
To invoke Brian McCall again, the determination (or application) of the natural law to concrete circumstances is not a process of moving from one abstraction to the next ad infinitum. Rather, it possesses a dialectical quality wherein the customs and circumstance of an actual people have a place in the process. “Deduction and determination of human law must always be done in light of the particularities of the community to which it will apply.” This is the essential activity not of a glorified statute reader, but of the common law judge: evaluating controversies between preestablished customs and discerning an equitable solution unto natural justice and the common good.
Anything governing human life will inevitably mirror the metaphysical contingency of humans themselves. “Life, and hence law, is radically more contingent than a game. Law is applied to contingent matters, which vary greatly across time and space.” The particulars of each community as well as the circumstances themselves must be examined closely when attempting to legislate and judge for the common good. Cognizance of the common sentiments of the populace—past and present—is intricate to that process.
In our present context of the pandemic, legislating for the common good according to common sentiment involves, inter alia, legislatures taking stock of public opinion, not merely prevailing medical consensus, on the ground. But the same legislatures can tailor their responses to the unique history, culture, etc. of their constituencies. As mentioned, this is why, in part, state legislatures are the best and proper forum for public health mandates and similar measures. The pandemic response in Mississippi will simply not be the response in New York, or Washington state, or South Dakota. And population size, travel rates, and the other factors are the least of it. The Union is a diverse place, and states should be nimble enough to act in accordance with that diversity which informs the common belief and sentiment of the people—by extension gaining a sort of direct consent for laws passed and thereby legitimacy and public trust. Past courts made a concerted effort, at least in theory, to judge the rational basis of state exercise of police power according to this standard.