Vermeule and Casey Respond to Judge Rao on Textualism's Political Morality

Further debate on textualism, "common good constitutionalism," and the classical legal method.

In March 2022, the Honorable Neomi Rao of the U.S. Court of Appeals for the D.C. Circuit delivered the Sumner Canary Memorial Lecture on "Textualism's Political Morality." The Case Western Reserve Law Review has published her lecture. It is available for download here.

Judge Rao's remarks have provoked a response from Professors Adrian Vermeule and Conor Casey, two prominent proponents of "Common Good Constitutionalism."  Their response, "Judge Rao's Unintentional Surrender,"  has been published in "The New Digest," a "forum for short essays on law, politics, political theology, post liberalism, and the common good."

The full essay requires a subscription, but here is how it begins:

On the March 3, 2022, Judge Rao of the United States Court of Appeals for the District of Columbia Circuit gave the Sumner Canary Memorial Lecture at Case Western Reserve University, which has now been published. Her lecture, entitled Textualism's Political Morality, sets out to "explore the political morality that undergirds and informs a textualist approach to statutory interpretation" and then to contrast textualism favorably against "methods of interpretation that rely on the judge's abstract normative values about justice or fairness or that seek to update statutes in accordance with evolving social or political norms." In her opening remarks, Judge Rao says that her defense of textualism is "especially timely" given critiques advanced by what the judge refers to as a "wave of post-liberal scholars" (mentioning one of us by name) who have suggested that "laws should be interpreted to promote the 'common good.'" Judge Rao's subsequent critique of common good constitutionalism and its classical approach is anchored on the premise that its proponents think "judges should give effect to certain substantive values, values that exist independently of the law" and that "should interpret statutes in light of principles found outside the law" because "such principles will lead to 'better' results than simply following the text" (our emphases).

This is, rather trivially, not at all the classical legal position held by common good constitutionalists; the classical view has always been that background principles of legal justice are themselves internal to law. As Vermeule wrote in his recent book, the principles to which the classical tradition looks "are themselves already part of the law and internal to it." Or, as John Finnis puts it, such principles are ipso iure, meaning that they are themselves part of the law. All this is familiar and uncontested, or ought to be. H.F. Jolowicz explained long ago that for the Roman lawyers, aequitas or equity was not a "contrasting principle" to law, but a mode of interpretation within law.

But in this post, we want to do more than highlight Judge Rao's misunderstandings. If Judge Rao merely misunderstood what the classical view holds, her lecture could neatly join a crowded shelf of off-the-bench efforts at legal theory by originalist judges, which we have discussed elsewhere, and which are also crippled by a question-begging stipulation that the classical legal tradition does something other than law.

What we find more interesting, and which raises her argument to an apparently unintended form of high art, is that she then proceeds to recreate the classical view itself, seemingly without knowing that she is doing so, and under a different label. In so doing, Judge Rao has continued a recent trend, in which textualists have in effect allowed a kind of Augustan settlement of our law. Like the senators and optimates of Rome under Augustus, they have been content with retaining the outward forms and labels of the regime to which they are wedded, while ceding the operative content of the law to rule by other principles.