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Friday, April 3, 2020

Enter Conservative Living Constitutionalism

By Randy E. Barnett - April 03, 2020 at 08:21AM

The Atlantic has just published my response to Adrian Vermuele's Atlantic article Beyond Originalism. My piece is entitled, Common-Good Constitutionalism Reveals the Dangers of Any Non-Originalist Approach to the Constitution. Here is a taste:

Common-good constitutionalism "should take as its starting point substantive moral principles that conduce to the common good," which, Vermeule believes, can be "read into the majestic generalities and ambiguities of the written Constitution." Above all, common-good constitutionalism requires "a candid willingness to 'legislate morality'—indeed, a recognition that all legislation is necessarily founded on some substantive conception of morality, and that the promotion of morality is a core and legitimate function of authority." . . .

This is nothing but conservative living constitutionalism. While the article is long on narrative, critique, and assertion, it is short on original theory and specifics. Instead, for his theory, Vermeule relies on "Ronald Dworkin, the legal scholar and philosopher" (and my jurisprudence professor when he visited Harvard Law School), who "used to urge 'moral readings of the Constitution.' Common-good constitutionalism is methodologically Dworkinian, but advocates a very different set of substantive moral commitments and priorities from Dworkin's, which were of a conventionally left-liberal bent." . . .

Moral readings constitutionalism is a version of living constitutionalism. Its mantle has been taken up and further developed by Originalism-critic and Boston University law professor James Fleming. Here is the description of Fleming's latest book, Fidelity to Our Imperfect Constitution: For Moral Readings and Against Originalisms:

James Fleming rejects originalisms–whether old or new, concrete or abstract, living or dead. Instead, he defends what Ronald Dworkin called a "moral reading" of the United States Constitution, or a "philosophic approach" to constitutional interpretation. He refers to conceptions of the Constitution as embodying abstract moral and political principles–not codifying concrete historical rules or practices-and of interpretation of those principles as requiring normative judgments about how they are best understood-not merely historical research to discover relatively specific original meanings.

Sound familiar? Jim Fleming call your office. You have a new convert, though he's not exactly what you hoped for (and he doesn't cite you). He's just across the river, so you guys should get together and hash this out over lunch.

In my Atlantic essay I raise some questions about Vermuele's particular moral readings approach:

A moral-readings approach like Vermeule's raises some obvious questions:

  • What qualifies state legislators to make spiritual choices that will be imposed on nonconsenting citizens? What will legislative debates about morality look like? Who will be called as witnesses in legislative hearings? The inevitable answer is that legislators will just vote their own morality and the legislative majority will prevail. In the legislature, might will make right. (The state-sanctioned segregation upheld in Plessy is a good example of this.)
  • Assuming there is any judicial review left, what in judges' training qualifies them to assess these competing moral claims on which legislation is to be solely based? Answer: Nothing.
  • Above all, what happens to social peace as the government starts incarcerating the dissenting minority for failing to adhere to their moral duties? Religious war, anyone?

What does Vermeule have to say about these and other obvious questions? Well, nothing. He does not even acknowledge that such questions exist. Presumably, all will be revealed to us in the fullness of time.

There is much more in the whole essay, which asks progressives to consider how the living constitutionalism they favor can be adopted by conservatives and used against them. Perhaps they will consider either muting their criticism of originalist judges, or even joining the Originalism League themselves. There are several competing teams they can choose to play for.

You can read the whole essay here.


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