Against judicial tyranny

Ours is a government of laws, not men, to quote Founding Father John Adams. But laws mean very little if individuals in black robes can pour any meaning they wish into them. In such a world, we end up with a government of men delivered through a masquerade of law. A new effort is underway among some conservatives to reinstitute the rule of men by telling judges to use the law to institute values, as long as they are conservative judges confirming conservative values. This new movement, which calls itself “common good constitutionalism,” is a betrayal of everything conservatives have worked for five decades to build.

Before 1970, conservatives watched in frustration as judges—mostly in the federal courts—wielded massive power over society. In one famous case, the Supreme Court said a constitutional provision “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” That is living constitutionalism in a nutshell. By that standard, the Constitution means anything a judge wants it to mean.

In response, Judge Robert Bork, Justice Antonin Scalia, Attorney General Edwin Meese, and others provided an alternative to the progressive vision. They called their approach “originalism,” which is the legal theory that judges should figure out what the words of the law originally meant to a member of the regulated community (usually the general public) at the time the law was written.

Originalism does not always deliver a perfect answer, but it provides a framework for finding a right answer. If a judge claims to provide an originalist answer in a case, we can test that answer against historical evidence—that laws are bound to words with historical meaning, and courts should be bound to those words. By contrast, living constitutionalism provides no such accountability because there is no one right answer to what the Constitution and statutes mean.

After 50 years of conservative devotion to originalism, a new school of thought, claiming to be conservative, proposes a different approach. In the words of its leading champion, Harvard Law School professor Adrian Vermeule, it is time to move “beyond originalism.” Instead, he proposes “common good constitutionalism”—a legal approach “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.”

The natural next question is, “Whose common good?” Followed by, “Who gets to define the common good?” For Vermeule, the common good is weighed against “the relentless expansion of individualistic autonomy” favored by liberals.

Vermeule’s vision has a certain surface appeal to conservatives. He defines the common good as “respect for the authority of rule and of rulers; respect for the hierarchies needed for society to function; solidarity within and among families, social groups, and workers’ unions, trade associations, and professions; appropriate subsidiarity, or respect for the legitimate roles of public bodies and associations at all levels of government and society; and a candid willingness to ‘legislate morality.’” Except for the bit about workers unions, this all sounds solidly conservative. And it has a particular resonance for those who believe in natural law, the idea that a knowable universal moral ethos undergirds all human societies.

U.S. Circuit Judge William Pryor recently launched an intellectual cruise missile straight at the heart of Vermeule’s new school of thought. In a recent lecture to members of the Federalist Society, Pryor critiques what he calls “living common goodism.” He argues that Vermeule’s approach is fundamentally indistinguishable from the living constitutionalism of judicial liberals. Under either method, judges put values into their decisions about the Constitution—the only difference is which set of values the judges are reading in.

Pryor’s most fundamental insight is that “there is no necessary connection between the meaning of a text and any particular conception of the common good. One must know a text’s meaning before one can know whether faithful application of its meaning would ‘conduce to the common good.’” Rulers may promulgate bad laws that conflict with natural law and the common good. The proper response in such an instance is to elect a new ruler, not have the judge cancel the law by interpreting it into meaninglessness.

Justice Scalia once quipped that he wished all federal judges were given a stamp that read “Stupid but constitutional.” In Vermeule’s world, no such stamp would be necessary. Any law that is “stupid”—i.e., opposed to the common good—could be struck down by judges, based on their particular view of the world. This would be a substantial expansion of judicial power and a significant loss of democratic governance for the people.

Turning judges into tyrants is never a good idea, even if the judges claim to be conservatives.