Tuesday, May 12, 2020

Vermeule Responds to Josh Hammer

MoJ: On “Common-Good Originalism”





Originalism, Common-Good Originalism, and Common-Good Constitutionalism by Josh Blackman
Adrian Vermeule responds to Josh Hammer. We are watching an important debate unfold before our eyes.










Vermeule:
The structure built of originalism and the common good fits together poorly, for the former is a positivist approach and the latter a nonpositivist one. Thus nothing at all guarantees that the original understanding will necessarily or even predictably track the common good (however the latter is defined), and conversely it is always possible, indeed likely, that the common good (however defined) will prescribe an interpretation that cannot be justified in originalist terms. Towards the end of the discussion, I will examine some other ways of attempting to combine the two approaches, none of which is particularly convincing.

Is the Constitution subject to the natural law? Yes, the Constitution is to be judged by the natural law, with regards to whether its parts are valid and just, but in so far as the natural law deals with political associations other than the political community. Do Vermeule and the Latin integralists have an adequate theory of federalism? How can they understand how the natural law applies to the U.S. Federal Government, as its powers are laid out under the Constitution, without a theory of federalism? Or is that all irrelevant now, after so many years of the Federal Government deviating from the Constitution?

It would seem that Vermeule thinks that the Constitution can be unfolded or even corrected through administrative law, which should be shaped and understood with reference to the common good. How can one talk about the common good of the United States, in accordance with which the Constitution is to be interpreted, if one does not know what sort of common good is involved?

If the Constitution or the state constitutions were not subject to natural law, one could not judge whether they observed the proper limits as imposed by the common good. (And state constitutions probably don't, as the governments are not proportioned to their size.) If the Constitution is deemed to be unjust in some part, then it should be revised through Amendments. And if there an Amendment is not possible, than other remedies may be possible, though denied by the Nationalists, probably including Vermeule himself.
What happens if and when the original understanding and the common good diverge? (After all, the Constitution of 1789, even viewed in the best possible light, was shot through with grievous moral compromises, as were the later amendments in their own ways). Is the idea that somehow originalism is necessarily ordered to the common good, or conversely that the common good necessarily entails originalism? Or is the relationship contingent, such that originalism usually or sufficiently often yields the common good, or that the common good implies an originalist approach to interpretation, given specified empirical conditions? What exactly are those conditions, and what is the evidence for such claims, given various specifications of originalism and of the common good?

 This is not a problem of “hard cases” or unusual boundary situations; it’s a problem about the intrinsic incompatibility between the two parts of Hammer’s enterprise. Roughly speaking, and bracketing whole forests of theoretical epicycles and curlicues, originalism is a positivist enterprise, one that (at least in a pure form) takes the meaning of the law to be solely determined by historical facts about what designated actors said and did, regardless of whether the resulting outputs happen to track or not to track the common good, however defined. By contrast, reading the Constitution to promote the common good is an interpretivist rather than a positivist enterprise. It reads our law and legal practices and institutional history in light of background principles of political morality, which are themselves understood to be legal principles.

 For common-good constitutionalism (although not of course for Dworkin), the relevant background principles are those of the classical legal tradition, heavily influential in America until a surprisingly recent point in our history. Of course the classical legal tradition recognizes the legitimate authority of rulers to promulgate ius civile, positive law, as a determination or specification of background principles of natural law and the general law of nations (ius gentium) where those principles admit of multiple reasonable specifications. In this sense part of the law is a positive ordinance of the ruler, and indeed the classical legal tradition says that the text of the law and the intentions of the lawmaker are central considerations in the interpretation of positive enactments. (Respect for enacted texts is hardly unique to originalism). But on the classical approach, it is defined into the nature of law that law is not merely whatever ordinance the incumbent authority happens to create, but is rather an ordinance of reason, promulgated to promote the common good; and it is defined into the nature of the ius civile that it derives from higher law that it determines and specifies. Thus the ius civile is always interpreted in light of background principles of higher law. In the extreme limit the classical tradition holds that an unjust law is no law at all.
Roman Catholic social doctrine is underdeveloped with respect to the common good, for the reasons discussed by Russell Hittinger in his 2020 Aquinas lecture for the Blackfriars.

I see nothing that would prevent Latin integralists from nullifying the right to own guns through federal administrative law, in clear defiance of the Second Amendment, in the name of the "common good."

At this point I may go back to ignoring the Latin integralists as ultimately they are rather inconsequential, even among their co-religionists.


Related:

Posted by at
Labels: , , ,

No comments:

Post a Comment

Subscribe to: Post Comments (Atom)