The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Last Friday, Chief Judge William Pryor of the U.S. Court of Appeals for the Eleventh Circuit delivered a lecture responding to calls for "common-good constitutionalism" by some conservative pundits and legal scholars. This lecture, "Against Living Common Goodism," was the Keynote address at the Federalist Society's 2022 Ohio Chapters Conference and is now available online (including as a nicely formatted PDF).
Judge Pryor's lecture takes direct aim at the work of Harvard Law School's Adrian Vermeule, in particular, and argues that there is little to distinguish "common good constitutionalism" from progressive legal theories of a living constitution, other than its explicit political valence.
Here is a taste:
I want . . . 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."
And from Judge Pryor's conclusion:
I will close by quoting from Justice Benjamin Curtis's dissent in Dred Scott v. Sandford. I do so because Vermeule repeatedly invokes the living-constitutionalist myth that Dred Scott is "the most clearly proto-originalist decision." Justice Curtis, like the courts that later rejected Riggs, repudiated the approach that would allow judges to read unmentioned exceptions into unambiguous texts. When addressing whether the Supreme Court had the authority "to insert into . . . the Constitution an exception of the exclusion or allowance of slavery" to Congress's express "power to make all needful rules and regulations respecting" territories, Curtis rejected Chief Justice Taney's majority opinion as anti-textualist:
To engraft on [the Constitution] a substantive exception not found in it, . . . upon reasons purely political, renders its judicial interpretation impossible—because judicial tribunals, as such, cannot decide upon political considerations. Political reasons have not the requisite certainty to afford rules of judicial interpretation. They are different in different men. They are different in the same men at different times. And when a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean.
Justice Curtis's textualist dissent in Dred Scott rejected living common goodism. So should you!
This is Judge Pryor's second recent lecture addressing challenges to originalism. Last fall, Judge Pryor delivered the Joseph Story Lecture at the Heritage Foundation on "Politics and the Rule of Law," in which he responded to calls for a "common good originalism." As one might suspect, Judge Pryor is not interested in these reformulations, and would prefer continued adherence to the real thing.