The Problem With “Common Good Constitutionalism”

Monday, April 6, 2020
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In 1980, Stanford Law School Professor Paul Brest wrote his famous article, “The Misconceived Quest for An Original Understanding,” in which he defined “originalism” as an “approach to constitutional adjudication that accords binding authority to the text of the Constitution or the intentions of its adopters.” Brest concluded that originalism failed to deal adequately with two fundamental problems: the multiple intentions of different parties, and the danger of constitutional obsolescence attributable to changed circumstances.

Brest’s skeptical view of originalism was quickly championed by other writers, most notably the legal scholar Ronald Dworkin, who advocated a “moral reading” of the Constitution. In his book Freedom’s Law, Dworkin treats the text as the basis for understanding key constitutional conceptions like liberty, equality and dignity, which judges, lawyers and citizens have to flesh out under some ideal normative theory.

This anti-originalist approach has generated a strong backlash from scholars like Georgetown’s Randy Barnett, who argues that the detour into moral theory gives modern judges carte blanche to read every fashionable idea into the Constitution, until different constitutional moralists have reduced the stature of the Constitution from the supreme law of the land into a pitiable Tower of Babel. Hence the constant originalist refrain that constitutional terms have to be interpreted in accordance with their established public meaning.

Of course, that approach can easily generate uncertain outcomes when the text falls short, at which point an originalist interpretation needs to be supplemented by the customary practice of post-adoption. One illustration is Zivotofsky v. Kerry (2015), which held that the President, not Congress, had the final say on whether or not to recognize foreign governments. Originalists correctly claim that their principles can never eliminate all disputes. They are also right to insist, as did Justice Antonin Scalia in his lecture “Originalism: The Lesser Evil,” that a “faint-hearted” originalism is preferable to the unguided wanderings of a living constitution.

Enter Professor Adrian Vermeule of Harvard Law School and his highly controversial recent article Beyond Originalism, which seeks to meld the Dworkinian search for the best moral theory with “common-good constitutionalism,” which he describes as an approach to constitutional interpretation “based on the principles that government helps direct persons, associations, and society generally toward the common good.” He adds “that strong rule in the interest of attaining the common good is entirely legitimate.” Needless to say, Vermeule’s bold argument has earned strong rebukes from legal scholars and writers on both the left and the right. I will put political bickering to the side and focus only on the merits of his argument.

Vermeule contends that “every justice and almost every judge nominated by recent Republican administrations” has pledged adherence to the outmoded intellectual theory of originalism. Although he never names particular thinkers, he is also critical of “libertarian (or ‘classical liberal’) constitutionalism, which emphasizes principles of individual freedom that are often in uneasy tension with the Constitution’s original meaning and the founding generation’s norms.” His lone example on this front is that in 1811, a great state court judge, Chancellor James Kent, once upheld a conviction for blasphemy, notwithstanding constitutional protections afforded through the freedom of religion clauses.

It should be obvious that it takes more than a single marginal “morals” case to dispatch a major theory. And moreover, it is important to distinguish between the two theories that Vermeule conflates, namely libertarianism and classical liberalism. The latter, which I defended in my 2014 book The Classical Liberal Constitution, sees a far larger role for government than hard-core libertarianism. By any reckoning, the classical liberal position remains far more constrained than Vermeule’s free-for-all constitutionalism.

Here is one example. Article I, Section 8, Clause 1 of the Constitution reads as follows:

The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

Vermeule believes this clause offers an opening wedge to common-good constitutionalism. But in order to demonstrate this, he elides the text so it gives Congress “power to…provide for the common Defence and general Welfare of the United States,” eliminating the reference to the phrase “pay the debts.” In so doing, he gets the necessary running room to radically remake the clause. But structurally, three targets of these expenditures should be read in series. The only debts Congress can pay are those of the United States; the only defense Congress can safeguard is that of the United States; and the only general welfare Congress can provide for is that of the United States. Consistent with general classical liberal theory, the treatment of the debt and the common defense (the only legitimate uses of coercion) must be directed to making overall improvements in social welfare, and not to engaging in the outright transfer of wealth from A to B. That is just what the Supreme Court held in Calder v. Bull (1798), where Justice Chase insisted on preserving this full range of constitutional values:

A law that punished a citizen for an innocent action, or, in other words, for an act, which, when done, was in violation of no existing law; a law that destroys, or impairs, the lawful private contracts of citizens; a law that makes a man a Judge in his own cause; or a law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with SUCH powers; and, therefore, it cannot be presumed that they have done it.

To conclude that the general welfare clause authorizes endless transfers among various groups and individuals is literally to turn the Constitution upside down. Unfortunately, it is the common tendency among political figures to weaken exactly these constraints. Thus, acting as Secretary of the Treasury, Alexander Hamilton, in his famous 1791 Report on Manufactures, conveniently dropped the words “of the United States” in quoting the Constitution in order to push an early form of industrial policy aimed at encouraging particular trades—an approach flatly inconsistent with the classical liberal principles.

One of the welcome blessings of a close originalist approach to the Constitution is that it requires that each and every word counts, so that the deadliest enemy of accurate interpretation becomes those pesky three dots, which always conceal more than they reveal. Once those omissions are replaced with real text, Vermeule’s “common-good constitutionalism” falls apart because it rejects the principles of methodological individualism, which is, as I have argued elsewhere, wary about making either descriptive or normative statements about groups that cannot be “reduced” to statements about the individuals who compose them. 

By way of example, a statement that “X policy is good for the corporation” is best understood as a shorthand way of saying that it is good for all the shareholders individually, whose identical shares mean (at least as a first approximation) that any improvement that falls to one falls in equal proportion to all the others. Under this approach, a policy could not be said to be good for the corporation if it results in a transfer of wealth from one group of shareholders to another. That same logic applies if we think that the general welfare of the United States refers to the general welfare of all its citizens.  That proposition is falsified if a policy of taxation or transfers is intended to benefit one class of citizens at the expense of another.

Vermeule’s muddy collectivism ignores this critical distinction in the meaning of the common good, and his “anything goes” attitude allows government enormous discretion to transfer wealth and power from one group to another. He laments, for example, the decline of unions and other “solidaristic” organizations without once asking whether the decision of Congress to undergird their monopoly power in the National Labor Relation Act actually helped advance the common good or not, a fiercely debated point.

A departure from originalist principles can lead to a dangerous rise of muscular government institutions especially at the federal level. On originalist grounds, for example, there is no way in which Congress’s power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes” gives it any power to regulate agriculture, manufacturing, or mining within each of the several states, any more than it gives them that power over Great Britain or the Apache tribes. Indeed, one reason why New Deal thinkers had such fondness for arcane theories of interpretation was their determination to avoid not only the federalism limitations on national power, but also to avoid any protection of economic liberties at either the federal or state level.

Yet by the same token it is critical to remember that it would be most unwise, after literally centuries of textual interpretation, to treat fidelity to the text as a sufficient condition for constitutional interpretation, when in fact it is only a necessary one. The cryptic phrases of the Constitution cry out for supplementation. It turns out that the Framers were intimately familiar with both Roman law and early English law. Both of these systems had an orderly way of introducing principled limitations on the exercise of jurisdictional power and the protection of individual rights. Hence the implied terms of our Constitution are as much a part of its basic structure as are the textual elements themselves.

It is imperative that we clearly articulate the full set of principles needed to guide all aspects of constitutional interpretation. This task cannot be accomplished under Vermeule’s dangerous conception of “common-good constitutionalism.”


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