By David B. Rivkin Jr. and Andrew M. Grossman
July 23, 2021, in the Wall Street Journal
As liberals lick their wounds from the recent Supreme Court term, a small but noisy band on the right has launched a dissent against the conservative legal movement that produced the court’s majority. They want a new jurisprudence of “moral substance” that elevates conservative results over legalistic or procedural questions such as individual rights, limited government and separation of powers. Some advocates call this idea “common good originalism,” but it isn’t originalism. It’s no different from the raw-power judicial activism conservatives have railed against for decades as unaccountable, unwise and dangerous.
The “common good” pitch arrived nearly full-born in a 2020 essay by Harvard law professor Adrian Vermeule. A brilliant eccentric, Mr. Vermeule is best known for his advocacy of unchecked presidential and administrative supremacy and for the incorporation of Catholicism into civil law, which he calls integralism and critics call theocracy.
Mr. Vermeule is skeptical of law, restraints on government and the Enlightenment generally. He describes originalism as “an obstacle to the development of a robust, substantively conservative approach to constitutional law and interpretation.” To that end, he would give less emphasis to “particular written instruments” like the Constitution and more to “moral principles that conduce to the common good.” A web link to Thomas Aquinas ’ “Summa Theologica” suggests what he has in mind.
A handful of populist conservatives— Hadley Arkes, Josh Hammer, Matthew Peterson and Garrett Snedeker —took up the “common good” banner in an essay published in March. Frustrated that conservatives can’t seem to win the culture war no matter how many judges they appoint, they fault the conservative justices’ legal formalism as morally denuded and counterproductive to conservative ends. But they part with Mr. Vermeule by avoiding sectarianism in favor of vague references to “moral truth” and in branding their enterprise as a variant of originalism, one centered on the Constitution’s preamble and its reference to “the general welfare.”
As with liberal talk about the “living Constitution,” the high-minded rhetoric conceals an assertion of unbridled power. Liberals, the quartet justly complain, rack up victories because they are unabashed about enforcing their own moral purposes. That’s “a form of tyranny,” to which they urge conservatives to respond in kind by remaining cognizant of results and not splitting hairs (and votes) over arcane matters of legal interpretation.
That is a far cry from originalism, the interpretive philosophy Justice Antonin Scalia championed. Scalia looked to the plain meaning of the words in the Constitution at the time they were enacted. He also championed textualism, which applies the same approach to statutory interpretation. The common gooders, by contrast, would put a thumb on the scale (or, when necessary, a brick) to reach what they believe are conservative ends. They say that anything less is “morally neutered.”
But originalism and textualism defer to the morality wrought in the law by those who enacted it. The duty of a judge in a system of self-government is to exercise “neither Force nor Will, but merely judgment,” Alexander Hamilton wrote in Federalist No. 78. Or as Scalia put it in his dissent from Planned Parenthood v. Casey (1992), “Value judgments . . . should be voted on, not dictated.”
The Constitution doesn’t codify the common good, let alone appoint judges as its inquisitors. The Framers, as students of history, understood that mankind is fallible and that a government powerful enough to prescribe moral truth could achieve only tyranny. Rather than put their faith in the beneficence of statesmen, they established a structure that pits faction against faction to “secure the blessings of liberty,” as the preamble puts it. James Madison thought self-government “presupposes” public virtue, which can’t be dictated, only sown in the soil of freedom.
As in theory, so too in practice. Moral truth isn’t the output of any government program or court decision. It is cultivated by families, communities and civil society. It has long been the progressive tendency to seek a governmental mandate for the perfection of man and the conservative tendency to resist. The court decisions that social conservatives bemoan—from Roe v. Wade on down—can’t be criticized for failing to take a position on moral truth, only for imposing a progressive vision by judicial fiat. A jurisprudence of restraint, one that recognizes the proper limits of government, preserves the space necessary to practice moral values—ask the Little Sisters of the Poor or Catholic Social Services of Philadelphia.
There is no contradiction between the conservative legal movement’s pursuit of limited government and the common-gooders’ substantive ends. Genuine limits on government power protect the dignity and worth of the human person. The court’s history proves the point. When it has traded away constitutional command for popular notions of the common good, the result has been moral tragedy. Buck v. Bell (1927) approved compulsory sterilization of the “manifestly unfit” as a “benefit . . . to society.” Kelo v. New London (2005) regarded government’s taking homes from families for the benefit of a private corporation as “the achievement of a public good.” Yet the common-good quartet deride “the pursuit of limited government” as amoral, a hobbyhorse of the “individual liberty-obsessed.”
One might excuse these objections if a results-oriented jurisprudence promised some practical benefit, but it doesn’t. The success of the conservative legal movement is evident in the five Supreme Court justices, and scores of lower-court judges, who have described themselves as originalists. No jurist to date has claimed the “common good” mantle.
And originalism delivers results. In the past several months, self-consciously originalist decisions have fortified property rights, limited unaccountable bureaucracy, strengthened protections for freedom of association, recognized young adults’ Second Amendment rights, and expanded the freedom of religious practice. What is to be gained from abandoning originalism now, at the apex (at least to date) of its influence?
The critics’ main answer is to assail the court’s decision in Bostock v. Clayton County (2020), which interpreted the Civil Rights Act of 1964 to permit employment-discrimination claims based on sexual orientation or transgender status. Yet the Bostock dissenters, led by Justice Samuel Alito, faulted Justice Neil Gorsuch’s decision not for its embrace of textualism but for doing textualism badly. As Ed Whalen of the Ethics & Public Policy Center observed: “A bungling carpenter should not lead you to condemn the craft of carpentry.”
The high court in recent years has moved away from approaches that often sacrificed the principles of limited government to popular fashion or expert opinion. Fostering division among conservatives threatens that project at a time of special peril, as progressives march through the institutions of power. The chief obstacles to the left’s ambitions are the Constitution and a judiciary that withstands the pressure to read the enthusiasms of the elite into the law. If conservatives seeking easy victories succumb to the allure of facile judicial activism, those barriers will be breached.
For his part, Mr. Vermeule takes inspiration from an 1892 encyclical in which Pope Leo XIII “urged French Catholics to rally to the Third French Republic in order to transform it from within.” He imagines American Catholics will eventually co-opt “executive-type bureaucracies” to effect a “restoration of Christendom.” Such a ralliement seems far less likely in the U.S. than in France, but it failed there too.
Mr. Rivkin served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Mr. Grossman is an adjunct scholar at the Cato Institute. Both practice appellate and constitutional law in Washington.