Chief Judge William Pryor of U.S. Court of Appeals, Eleventh Circuit gave a lecture last Friday responding to the calls for common-good constitutionalism made by some conservative pundits. The lecture “Against Living Common Goodism” was delivered as the Keynote Address at the 2022 Ohio Chapters Conference by Chief Judge William Pryor of the U.S. Court of Appeals for the Eleventh Circuit and can now be accessed online in a PDF format.
Judge Pryor takes direct aim at Adrian Vermeule’s work in Harvard Law School and says that “common good constitutionalism”, unlike progressive legal theories, is not a distinct entity from a living constitution.
Let’s take a look at this:
I’d like. . . to address a kind of results-oriented jurisprudence that is indistinguishable in everything but name from Justice Brennan’s living constitutionalism: Harvard Law Professor Adrian Vermeule’s so-called common-good constitutionalism—a variant of what I call living common goodism. Vermeule describes Vermeule’s method as “take”.[s]As its foundation, it will be based on moral principles that promote the common welfare. [judges] . . . you should look at the magnificence of the Constitution’s ambiguities and generalities. Vermeule sounds very much like Brennan’s live constitutionalism if you replace “common good” by “human dignity”. Vermeule’s live constitutionalism is actually quite different from Brennan’s. However, in practice the methods are identical.
Vermeule is correct in my opinion. However, I would not be remiss if you dismissed it. Although there’s not much evidence Vermeule has persuaded many lawyers or judges, his views are being considered seriously by some law students. We should also be aware of wrong views, such as the living common goodism view. The history of the Federalist Society shows this. Let me now explain the reasons Vermeule’s views are wrong.
Judges are not allowed to read into the Constitution any “substantive moral principles” that contribute to the common welfare. This kind of jurisprudence is contrary to natural law. Professor Robert George explains that when courts overstep their boundaries and use “legislative power,” for any reason, whether good or not, they violate the rule law. They seize the authority authoritatively given to them by the Framers and Ratifiers of Constitution to other branches.
Judge Pryor’s conclusions:
Let me close with a quote from Justice Benjamin Curtis’s dissension in Dred Scott v. Sandford. I do so because Vermeule repeatedly invokes the living-constitutionalist myth that Dred ScottIt is considered “the most proto-originalist decision.” Justice Curtis rejected Riggs’ approach, which would have allowed judges to translate unmentioned exemptions into unambiguous text. The Supreme Court’s authority to “insert into” was raised. . . the Constitution an exception of the exclusion or allowance of slavery” to Congress’s express “power to make all needful rules and regulations respecting” territories, Curtis rejected Chief Justice Taney’s majority opinion as anti-textualist:
To engraft on [the Constitution]It does not contain a substantive exception. . . upon reasons purely political, renders its judicial interpretation impossible—because judicial tribunals, as such, cannot decide upon political considerations. The judicial interpretation of political decisions is not possible due to lack of certainty. Different men have different opinions. Different men can see them differently at different times. If the Constitution’s strict meaning is no longer followed by the rules that govern its interpretation, and the theories of people are allowed to dictate its meaning, there is no Constitution. Instead, the Constitution falls under the authority of individual men who have for now the ability to decide what the Constitution should mean.
Justice Curtis’s Dred Scott textualist dissent rejected living goodism. You should, too!
Judge Pryor is giving this lecture in response to the challenges of originalism. Judge Pryor gave the Joseph Story Lecture on Politics and the Rule of Law at the Heritage Foundation last fall. In it, he addressed calls for “common good originalism.” These reformulations are not what Judge Pryor wants and he would rather stick to the original.