April 20, 2020
Author: Chilton Williamson
An excellent essay by Jonathan Culbreath (“In Defense of ‘Common Good’ Constitutionalism”) that appeared in Crisis Magazine last week sent me to its subject–“Beyond Orginalism” by Adrian Vermeule, published in The Atlantic’s issue dated 31 March, 2020—that I should otherwise almost certainly have missed. Professor Vermeule, a Catholic, is Professor of Constitutional Law at Harvard; Mr. Culbreath teaches Latin at a Catholic high school in southern California. As Culbreath notes: “That a secular magazine like The Atlantic would publish an article of such unflinchingly Catholic convictions is remarkable to say the least, and certainly indicates the degree of significance which the article carries for contemporary political and legal discourse. In particular, Vermeule’s article bears great importance for conservative Catholics, many of whom have accepted the theory of [constitutional] originalism without a second thought.” (Perhaps unfairly, I found myself speculating, after having read the piece, on whether the editor who accepted and printed it was subsequently fired.)
Professor Vermeule begins by observing that while originalist approaches to the United States Constitution vary somewhat, all share the view that “constitutional meaning was fixed at the time of the Constitution’s enactment.” I wonder if “meaning” is le mot juste here, or whether “intent” might be more accurate. However that may be, for Vermeule’s purposes it may indeed be less so. “Originalism,” he argues, “has outlived its utility” one way or another. What conservatives need in its place, he proposes, is ‘‘common-good constitutionalism’…based on the principles that government helps direct persons, associations, and society generally toward the common good, and that strong rule in the interest of attaining the common good is entirely legitimate.” This understanding of constitutional law is starkly opposed equally to the originalist belief that jurisprudence should be based on a literal reading of the Constitution and thus a stark interpretation of it, and to the progressive insistence that it should aim at the “relentless expansion of individualistic autonomy.” “Common-good constitutionalism” denies that a person has “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life,” as the U.S. Supreme Court found, in Casey vs. Planned Parenthood, that he does. The reason why he doesn’t is not the absence of that right from the Constitutional text. It is that the claim is supported neither by the moral law nor the common good. In Culbreath’s gloss, “It is up to the institutions and agents of governments to discern this moral law and the common good and to implement it through the crafting of civil laws, and the enforcement of them by legitimate coercion. In Professor Vermeule’s words, common-good constitutionalism necessarily involves ‘a candid willingness to “legislate morality,” and it ‘does not suffer from a horror of political domination and hierarchy, because it sees that law is parental, a wise teacher, and an inculcator of good habits.’ Under this scheme, political actors—i.e., those who judge what is lawful—are not constrained by written law, such as a written constitution. On the contrary, it is they who make the laws….The judge, and in general the lawmaker or the ruler, has the grave obligation to make laws that are in conformity with the moral law itself.” (This was Aquinas’ teaching on the subject.) Vermeule’s argument speaks not only to the “common good” but to common sense as well. Also it appeals to historical fact, and to historical truth.
The Constitutional Convention of 1787 met to devise a just and efficient plan of government for American society as it had already existed on the North American Continent for nearly two centuries–not to recreate that society in a new form–and to install a new civil government within the existing moral and cultural community: an operation comparable to placing new and more efficient engines in a great ocean liner, while preserving the rest of the vessel—the hull, the superstructure, the public rooms, the cabins, etc.– intact. Colonial American society—like the society of the parent country and indeed the whole of Europe; the West as it existed at the time—was grounded in the classical, and subsequently the Christian, concept of the moral law that no government could justly ignore or legally deny, since it preceded human government and other public institutions and therefore limited the state itself. Even had it wished to, the Convention could not have repealed that law—and it did not wish to, nor was any mention made at Philadelphia of doing such a thing. That project has taken shape only recently in the context of historical time, and it has done so covertly and dishonestly, by political and judicial stealth.
Vermeule notes—and Culbreath underlines—the commonly expressed conservative objection that to reject originalism is to concede to left-liberalism the means to extend the power of the state for the purpose of thwarting moral and Christian ends. This was Justice Scaglia’s fear, the one that drove the whole of his legal career. Both men counter it by arguing, in Culbreath’s words, that, “This is exactly backwards. It is much more probable that by stepping back from state power conservatives will cede the battleground to left-liberalism.” Instead, conservatives (obviously including Catholic conservatives) must “shed their fear of the state and adopt a different path: to embrace political power, and to wield it in the service of the true common good, the moral law, and the Church herself.”