The Club for Growth recently put out a new policy handbook, entitled “Freedom Forward,” covering a range of issue areas, from tax to transportation to education. They graciously invited me to write the introduction to a unique chapter on originalism, which includes Eleventh Circuit Judge William Pryor’s seminal essay “Against Living Common Goodism,” originally published in the Federalist Society Review. In that instant-classic essay, Judge Pryor pushes back on a new approach to conservative jurisprudence advanced by Harvard law professor Adrian Vermeule, called “common good constitutionalism.”
Vermeule’s conceit, and that of the related “common good originalism,” is that originalism has failed to get the judicial results it promised the conservative legal movement, so we should largely abandon “value-neutral” process rules and join the Left in placing result-oriented thumbs on scales. In this vein, we should argue for judges to apply the “natural law” hidden behind constitutional texts, with a view to advancing that “common good.”
I find it ironic that such a critique gained prominence just as originalists finally—finally—achieved dominance on the Supreme Court, securing landmark rulings on subjects ranging from abortion and affirmative action to the scope of administrative power. Judge Pryor justly eviscerates this bizarre advice to change course right as the conservative legal movement attains so many of its goals. Then, as a bookend, or perhaps a lagniappe, Catholic University law professor Joel Alicea explains why originalism is actually consistent with natural law.
But I thought I’d do more to preview Judge Pryor’s arguments in my intro, coming up with a defense of originalism as already being for the common good. In doing so, I sketch out how originalism advances three specific kinds of common good relevant to the policy handbook: economic growth, manufacturing, and industrial development. Here’s the nut graf:
People and firms alike need the rules of the game to be clear and free from arbitrary enforcement if they are to plan their affairs, make long-term investments, and accept the risks of delayed gratification. The formula is simple: originalist jurisprudence promotes economic growth and industrial strength by reducing the arbitrary power of the regulatory state. When judges apply the law as written rather than bending over backward to approve the excesses of the political branches and unaccountable bureaucracy, they promote investment-backed expectations. Changes in the law then require sustained democratic majorities following the meta law through transparent processes. But when judges interpret the law liberally, ad hoc regulatory inflation leads to rule-of-law devaluation, which introduces economic uncertainty and harm.
More broadly, originalism points us toward a stable and consistent standard of judicial review—namely, the fixed meaning of the Constitution and its amendments at the time of their enactment. Judicial interpretations based on original public meaning leave no room for judges to smuggle their moral values and policy preferences in through the backdoor.
On the other hand, interpretive theories that empower judges to bypass text and context, and make decisions based on background or external considerations—be they natural law or evolving social views—license judges to import their own conceptions of justice and morality. If we scrap our commitment to the benchmark of original meaning, what’s the recourse for conservatives when a rogue judge interprets “natural law” in a progressive direction?
In sum, the U.S. Constitution remains an inspiring legal innovation that secures the political, economic, and social liberties indispensable to prosperity and human flourishing. I see no reason to deviate from a mission to preserve the integrity of its original meaning against the proponents of any variation of “living constitutionalism,” who are all too eager to sacrifice the rule of law at the altar of their ideological agendas.
Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].