Adrian Vermeule · Conor Casey & Adrian Vermeule
Discussion Questions
- What does "Common Good Constitutionalism" look like, in practice? What are the implications of a classical legal tradition that distinguishes between lex (posited law) and ius (the broader body of law including general principles of legal justice)?
- Does this distinction authorize interpreters to read constitutional texts in light of background principles of natural law and the common good — and to depart from original meaning when doing so is necessary to track the common good?
Hon. Antonin Scalia
In "Originalism: The Lesser Evil," Justice Scalia argues that originalism is the least bad of the available alternatives — not because it is perfect, but because the alternatives give the judge a roving commission to substitute her own moral and political judgment for the judgment the constitutional text actually expressed. "God's Justice and Ours" asks what a judge is to do when the law she is sworn to apply and her own moral convictions diverge.
Discussion Questions
- What do you make of Justice Scalia's argument that we should adhere to original meaning not because originalism is perfect, but because the alternatives are worse? What are the alternatives, and how are they worse?
- "God's Justice and Ours" engages the deeper question of what a judge is permitted to do when the law and the judge's personal moral convictions diverge. What is Justice Scalia's answer? Is it satisfying?
- Scalia's worry is that licensing the judge's moral judgment invites her to substitute conscience for law; Vermeule and Alicea reply that some moral judgment is unavoidable and had better be made well. Stage that disagreement directly. Is Scalia's restraint itself a substantive moral commitment about the judicial role, or a way of declining to make one?
Hon. Antonin Scalia
The dissent in Mistretta confronts the United States Sentencing Commission — a body that promulgated binding sentencing rules and was located, formally, within the judicial branch — and argues that the Commission was performing a legislative function that could not properly be lodged in the judiciary.
Discussion Questions
- Suppose Executive or Legislative Branch officials adopt a policy decision based on their understanding of the common good, but a justice concludes that the policy is incompatible with the common good. Under Justice Scalia's approach, how should a justice resolve that tension?
- Read together, the three Justice Scalia texts — the lecture, the essay, and the Mistretta dissent — make a single argument about the judicial role. State that argument in one or two sentences. Where is it strongest? Where does it depend on a premise that a critic like Vermeule or Alicea would reject?