A Jurisprudential Red Pill: Part I

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Each year, thousands of new law students enroll in Constitutional Law 101, where they imbibe the view that constitutional interpretation largely comes down to a choice between “originalism” and “living constitutionalism” – between divining the putative “original meaning” of the text, usually assisted by law-office history, or else reading progressive policy preferences into the broad commitments of the constitution to liberty and equality. In courses on statutory interpretation, students are presented with a similar choice between “textualism” and “purposivism” – following the ordinary or plain meaning of the text, or instead being guided by legislative intent or the putative purpose of the statute. Those law students who venture into the realm of theory typically encounter yet another paired opposition between “positivism” and “naturalism” or “idealism,” with the implicit message that legal theory is essentially a matter of following the one or the other. Most students tend to sort themselves into either the Fed Soc camp or the ACS camp, corresponding roughly to the originalist/textualist camp and the living constitutionalist/purposivist camp. A few, not satisfied with the alternatives, sit uneasily on the fence.

Common Good Constitutionalism holds out a red pill. In this book, Professor Adrian Vermeule contends that the opposition between the two camps is an illusion. In reality, both sit on the same side of a gulf that separates them from an older and richer conception of law that prevailed in Europe and the Anglophone world (and likely beyond) for millennia, and that prevailed here in the US until as recently as the interwar period.

In that older conception, which Vermeule terms the “classical legal tradition,” law is understood as “intrinsically reasoned and also purposive, ordered to the common good of the polity and that of mankind.” Law, in other words, is rooted primarily in reason, only secondarily in the will of the lawmaker; it is rationally intelligible and teleological, aimed at bringing about some objective good. Law, moreover, is more than just written law or positive legal enactments (lex); it also includes unwritten “general principles of jurisprudence and legal justice” (ius) that ground and shape positive law. Indeed, ius is both broader and more fundamental than lex: “Ius is the genus, lex is a species of it.”[1] “Law,” in this richer conception, includes natural law and the law of nations, both sources of general legal principles, as well as the local law (written and unwritten, constitutional and statutory) of a particular jurisdiction. In a healthy and well-functioning system, ius grounds and informs the constitutional, statutory, and common law of a particular jurisdiction, and the authorities in that jurisdiction seek to interpret and apply local law in light of principles of ius, harmonizing local law with the larger scheme or “matrix” in which it is embedded. As a “living tradition,” classical law accepts the developmental nature of law (as against originalism, at least in its rhetoric), but also rejects its detachment from an “objective legal and moral order” and its instrumentalization in service of extrinsic policy preferences (as against progressive living constitutionalism).

This richer “legal cosmology” shapes familiar concepts in ways that put the classical legal tradition at odds with both originalism and its supposed progressive antithesis. “Rights,” for example, are not conceived as near-inviolable zones of autonomy that ordinarily “trump” state action and can be overridden only in the face of especially compelling government interests. That conception – broadly shared by both right-liberal and left-liberal legal theory – sets up an inherent conflict between “individual liberty” and state authority that (together with its crypto-Hobbesian underpinnings) is foreign to the classical legal tradition. Instead, subjective rights – rights belonging to individual persons that give them the power to do this or lay claim to that – are derivative of objective right (ius), or that which is due in justice to each person. Objective right, in turn, “is itself determined by the common good, right from the ground up.” Thus, “the common good enters into the very definition of rights themselves, from the beginning,” determining their contours and tailoring their scope. In that conception, rights are neither opposed to nor “overridden” by state action, but rather are shaped and defined by the very good at which the society aims.

If this all sounds a little abstract, the examples Vermeule offers help underscore the practical difference that the classical conception of rights makes. Anyone who has stumbled over the notion that there can be a “free speech” right to create virtual child pornography (Ashcroft v. Free Speech Coalition) or lie about military honors (United States v. Alvarez) may want to question the very concept of “right” that those decisions presuppose. Not that the classical legal tradition would fail to recognize free speech rights (or other personal rights). But such rights would be justified differently – for example, by reference to “political justifications” that “focus on speech as a contribution to the common political processes of a community” rather than by reference to “autonomy-based justifications” that focus on individual self-expression. A justificatory structure for free speech rights oriented to the common good would leave ample room for discussion and dissemination of ideas while also leaving ample scope for public regulation of debased and degraded forms of “expression” that “tear[] at the very fabric” of human community. (One can find gestures at this conception of speech rights in some of the writings of Justice Alito, whose lonely dissents often seem haunted by the memory of a common-good framework.) Lest the speech example be taken to suggest that the classical framework necessarily “shrinks” rights, Vermeule adds that a common-good justificatory structure may well enlarge certain rights that an autonomy-based framework diminishes or fails to recognize. For example, by breaking down the supposed opposition between individual and public injury, a common-good framework might permit a broadening of rights by private plaintiffs to sue in court to vindicate the public interest in such genuinely common goods as the health of the environment. Common-good rights in this account track no conventional left- or right-leaning pattern.

Interpretive methodology in Vermeule’s account of the classical tradition also takes a different course. It is not a matter of choosing between text and purpose, nor between discovering “original meaning” and reading extra-legal policy preferences into open-textured statutes or constitutional provisions. Rather, because the “law” rightly understood “itself includes considerations beyond the enacted text (lex),” the “background principles of ius themselves enter into and help determine the meaning of lex.” And because the very nature of law is inescapably purposive or teleological, there is no avoiding consideration of the law’s aim or purpose in determining what the law means. But, contrary to a Llewellynesque caricature of classical law as setting interpreters adrift in a “sea of competing, unentrenched norms,”[2] Vermeule contends that the classical tradition is in fact compatible with – and may even require, under certain conditions – a kind of “presumptive textualism,” albeit a textualism that draws on principles of ius to help determine textual meaning, and that is justified in different terms than the standard version. Whereas the version of textualism pioneered by Justice Scalia (and now perhaps most zealously proclaimed by Justice Gorsuch) is essentially positivist – based on a claim that only enacted texts (lex) count as “law” – there is an older, non-positivist version of textualism that “is justified not analytically but by reference to substantive goods of political morality,” including “legal generality, certainty, [and] predictability.” That classical version of textualism, while affirming that “law” includes more than enacted texts, also holds that “for a certain class of decision-makers, under given circumstances” – for example, judges applying law to particular fact-bound disputes – “certain goods are best attained by requiring those decision-makers to stick closely to the ordinary, conventional meaning of text.” In other words, the classical justification for (at least presumptive) textualism is institutional, taking into account the comparative disadvantages of judges vis-à-vis lawmakers when it comes to broader considerations of how to do justice and pursue the common good over time and across varying conditions.

As with rights, the distinct justificatory account of classical textualism means that it will look somewhat different from positivist textualism in practice, even if the two travel similar paths in many cases. Perhaps the most obvious difference lies in what each version expects the interpreter to do in hard cases when the enacted text “opens up,” runs out, or underdetermines the outcome; or when a statute contains internally inconsistent provisions; or when one statute conflicts with another. In the crude but purest form of Hartian positivism, this should seldom happen – one thinks of the pages and pages of labored explanation sometimes devoted to demonstrating that a complicated statutory scheme is supposedly clear or unambiguous – but when it does, the judge is in the realm of unbounded discretion, free to consult the “book of morals” and use it to fill gaps or reconcile tensions in the law. In the classical view, by contrast – which takes law to be a department of political morality and understands “law” in the broad sense to include ius as well as enacted text – there is no need to venture “outside” law in hard cases. Rather, the interpreter reads enacted text in light of, and, if possible, in harmony with, general legal principles, including principles drawn from natural law and the law of nations. So, as a simple example, the court in the well-known case of Riggs v. Palmer reads an inheritance statute in light of the fundamental (but uncodified) legal principle that no one should profit from his own wrong, and interprets the statute to prevent the murdering heir from inheriting under his grandfather’s will. Importantly, the larger body of ius includes principles of institutional role morality – a point Vermeule emphasizes repeatedly, and that his critics usually miss – which may often tell judges to defer to the reasonable policy judgments of lawmakers, rather than evaluate the legal morality of enacted text in the first instance. Indeed, the book’s discussion of the relationship among determinatio, institutional role morality, and the allocation of interpretive authority should be required reading for anyone tempted to fret that the so-called administrative state might somehow be “unlawful.”

That is just a taste of the book on its own terms. It is a work of recovery and translation that scrambles conventional categories and puts the American constitutional and legal tradition back into conversation with an older tradition that is usually obscured by the positivism and instrumentalism of the last century. The book trades off between accessibility and depth. It builds on a treasury of legal, historical, and theoretical scholarship, but it paints in broad strokes, and it sometimes assumes a degree of familiarity with legal-academic debates that the median lawyer, let alone lay reader, may not possess. Yet what it lacks in comprehensiveness of discussion it offsets with the sharpness of its larger-picture presentation. No doubt the book will rankle some, for it pokes the sacred cows of the dominant schools of constitutional interpretation. And no doubt it makes ambitious claims about the nature of constitutionalism in a common-good framework that will need to be fleshed out more fully in future work. But the vistas it opens up are well worth exploring. The second installment of this post will consider a bit further one of the book’s more ambitious claims.

[1] Decretum, Dist. 1, c.2 (“Ius genus, lex species eius est.”).

[2] Quoting Jeffrey A. Pojanowski, Why Should Anyone Be an Originalist?, 31 Diritto Pubblico Comparato de Europea Online 583, 587 (2017).

Evelyn Blacklock is a lawyer in New York and a 2020 James Wilson Fellow.

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