Justice Stephen Breyer last week announced that he will retire at the end of this Supreme Court term. If the recent past is any guide, whoever is nominated to replace him will face a barrage of attacks from political opponents. Every Supreme Court nomination is now a battleground, featuring slander and even angry demonstrations, as when protesters of Justice Brett Kavanaugh’s nomination invaded the Senate building and attacked the very doors of the court.
The great promise of our legal system as understood by many modern theorists — that law can create a framework to reconcile plural interests in a diverse society — has manifestly failed. Instead the law has become ever more politically contested and bitterly divisive; the tolerance celebrated by the proponents of liberalism appears to be more science fiction than fact. Something has gone badly wrong: It is unclear, in America in 2022, what the point of the law is, what higher ends it should strive to attain. We have forgotten what law is for.
Today’s reigning theories of law are exhausted. On one side, legal progressivism shamelessly instrumentalizes the law in the service of a particular vision of social justice centered on identity politics and libertine social and sexual mores. This relentless crusade undermines the family, traditional morality and the well-being of the citizenry — especially those who lack the resources to buffer themselves against societal disintegration.
On the other side, originalism, which pretends to separate law from justice, rests on an invented tradition that has projected itself back into the past. As the historian Jonathan Gienapp puts it, originalists’ understanding of the Constitution is “anachronistic, a species of modern constitutional thinking that they unwittingly and uncritically impose on the eighteenth century.” Supposedly originalist judges constantly appeal, explicitly or implicitly, to contemporary view of justice to fix the meaning of general or abstract texts (like “due process of law” or “freedom of speech”) or otherwise to resolve hard cases.
Consider the strange 2020 decision in Bostock v. Clayton County. Some of the court’s self-described originalists provided the necessary votes to read the Civil Rights Act of 1964, implausibly, to protect sexual orientation and even transgender identity — quite obviously parroting the orthodoxy of the present.
Bostock was a crucial test of method: The decision was written by arguably the court’s most strident originalist, Justice Neil Gorsuch, and explicitly called for reading statutes (not just the Constitution) in light of their original public meaning. Yet at a key moment, Justice Gorsuch wrote that the law should be read at a remarkably abstract level of generality, sufficient to encompass protections that would have seemed risible in 1964 had they been imaginable at all, based on a contestable view of the equities of the issue; according to Gorsuch, following the original expectations of the legislators in 1964 “would tilt the scales of justice in favor of the strong or popular.” Bostock exposes that originalism betrays its own promise to leach arguments about justice out of interpretation.
Neither progressivism nor originalism has proved capable of transcending partisanship to produce solidarity and community. Every June, the Supreme Court breaks down largely along ideological lines — precisely in the great cases that attract the most public attention and concern, and that inevitably symbolize our national commitments. We lack an overarching legal framework to help all Americans argue over principles while still retaining the sense that they are participating in a common enterprise.
What’s missing from our law today is an emphasis on the common good, a concept that from the founding era onward was central to the American legal tradition, embodied in the references to the “general welfare” in both the preamble to the Constitution and its text. The classical legal tradition, the mainstream of the Western legal tradition until the 20th century, holds that laws should be interpreted in light of the legitimate aim of government, which is the flourishing of the community as a community. Classical constitutionalism holds that our political community can succeed only as a whole, rather than as a collection of warring interests, competing ideologies and isolated individuals — the underlying logic of modern jurisprudence. The aim of constitutional government and legal interpretation should be to promote the classical ideals of peace, justice and abundance.
The common good is no abstract idea; its absence is keenly felt today. In the past few decades, Americans have discovered that individuals and families cannot flourish if the whole community is fundamentally unhealthy, torn apart by conflict, lawlessness, poverty, pollution, sickness, and despair. Gated residences, private schools and Uber have not sufficed to immunize even the affluent against the consequences of living in a decaying, fractured and embittered polity. No family or civic association is an island, and the health of civic society and culture are themselves dependent upon the health of the constitutional order.
One needs no sectarian or contentious conception of the common good to think that America in 2022 desperately needs healing of the public community. Americans’ life expectancy is now roughly five years below that of people in comparable countries. Overdosing, rural despair and politicized anger are not hallmarks of a flourishing community in any reasonable view of what the common good means. Stable families, material security, dignified work and a sense of social harmony are objectively good for all. We may disagree on how precisely to achieve these ends, but denying they are something to aspire to as a community is irrational, and the laws should be interpreted accordingly. In hard cases, where legal sources are conflicting, ambiguous or unclear, the common good and its subsidiary ideals serve as principles for interpreting the laws.
American judges in the classical legal tradition applied the common good with a healthy measure of deference to the reasonable decisions of public authorities. In important cases from the past few decades, this approach would have changed both reasoning and outcomes. One example is the 2002 case Ashcroft v. Free Speech Coalition, in which Justice Anthony Kennedy, writing for a majority, struck down a federal law that barred the creation of virtual child pornography — images of people who appear to be minors, engaging in sexually explicit conduct, that were generated by computer or by adult actors posing as children. Justice Kennedy wrote that the law was “overbroad” because it prohibited speech “that records no crime and creates no victims by its production.” This neglects the diffuse harms to the community and the broader corrosion of the social fabric that occur when virtual child pornography is available. The law is a teacher of virtue, and it should not teach that animated or simulated child porn is somehow a victimless crime.
Likewise, the court erred in the recent decision in National Federation of Independent Business v. Department of Labor that, in effect, barred the Occupational Safety and Health Administration from requiring vaccination (or a test-and-mask regimen) in large workplaces. The safeguarding of public health is a core duty of governance, and Supreme Court precedent long ago established that “a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.” The court held that because the relevant laws gave OSHA the power to regulate workplace safety specifically, it could not regulate more general public health risks, like Covid, that also have important effects in and through the workplace — a libertarian non sequitur. The fear of rule by unelected bureaucrats in government agencies does not justify actual rule by unelected bureaucrats on the bench.
Finally, the court also erred in the landmark 1992 decision in Lujan v. Defenders of Wildlife, which required plaintiffs to show a personal “injury in fact” in order to challenge inadequate enforcement of environmental laws in federal court — even if, as the Court recently clarified, statutes create a right to sue. This constitutional requirement of a private stake to bring suit is backward. The law should encourage, not hamper, those who wish to articulate public interests in legal proceedings, especially where the health of the natural environment is at stake — the ultimate common good.
All officials are duty bound to consider the common good. As Justice Antonin Scalia once put it, governmental decisions are subject to “the fundamental constraint that the decision must be taken in order to further a public purpose rather than a purely private interest.” Common-good constitutionalism urges that this principle be remembered and renewed to heal the ills of our law. One hopes that Justice Breyer’s replacement can transcend the tired opposition of progressivism and originalism, and revive the orientation to the common good that was once central to the American legal tradition.
Adrian Vermeule is the Ralph S. Tyler, Jr., professor of constitutional law at Harvard Law School and the author of the forthcoming book “Common Good Constitutionalism.”
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