Catholicism, Textualism, and Republicanism - Timothy J. Gordon

[Gnarwhal]

In a recent article called “Vermeule, His Critics, and the Crisis of Originalism,” Hadley Arkes defends Adrian Vermeule’s attack on constitutional Originalism. The tenor of the debate suggests that conservative, Catholic, “common good” jurisprudence militates against Originalism. But neither Arkes nor Vermeule establishes any such thing. Instead, they both take an adversarial posture against the Aristotelian provenance of the common good.


Arkes and Vermeule misdefine “the common good” within the three-branch republic: they presume to surrogate unelected jurists for duly elected lawmakers. Judicial restraint be damned.​

Catholicism, Textualism, and Republicanism

 

[zippy2006]

This is interesting, thanks for pointing it out. I haven't finished reading the articles yet.

 

[zippy2006]

What a curious set of articles! In the first Vermeule's push for a conservative administrative state is strange, but also helpful insofar as it reveals the value of classical liberalism to the left. Maybe I am just too American, but Vermeule's vision didn't exactly appeal to me. He says, "Common-good constitutionalism is also not legal liberalism or libertarianism. Its main aim is certainly not to maximize individual autonomy or to minimize the abuse of power (an incoherent goal in any event), but instead to ensure that the ruler has the power needed to rule well," but I'm not sure that giving rulers more power is going to solve our 21st-century problems (especially including the pandemic, which he has in sight). He also says that, "The hostile environment that made originalism a useful rhetorical and political expedient is now gone." Except I don't feel that figures like Scalia were fixated on political expediency, and Vermeule himself comes across as something of an unscrupulous opportunist when he continually advises us to just "read his ideas into the Constitution." Er.. what? Did he mean to say that out loud? (It is interesting that Scalia, the lifelong Catholic, explicitly overruled Catholic political theory in favor of constitutional interpretation, whereas Vermeule, the Catholic convert, apparently favors Catholic political theory over the constitution, even at the cost of judicial fiat.)

If we read Vermeule in the best, best possible light I can sort of see his case. It's just that it seems too unrestrained in the context of American (classical) liberalism. I'm sure theocracies can be legitimate, but they are also incompatible with our Founding.

I thought the second article was the best of the three. Arkes mitigates Vermeule in an appealing way, focusing on axioms and pre-Founding jurisprudence. He made a good case against a vapid originalism, and, best of all, criticized the vagueness with which Vermeule used the term, "Common good." (It's not clear to me that any of the authors have a handle on what the common good is for Aristotle and Aquinas.)

The third article was painful, filled with deeply flawed reasoning. After reading it all I really know is that Gordon favors textualism over intentionalism because it can achieve a Catholic hermeneutic of continuity via its ability to restrain Vatican II. (Who is this guy and who gave him permission to publish? ) Okay, to be fair his description of the four causes of the "Catholic social architectonic" as the common good, dignity, solidarity, and subsidiarity, was interesting and vaguely plausible, but most of the article was disappointing. I'm pretty sure he was just looking for an opportunity to talk about Vatican II.

For me, originalism is plausible, practically achievable, and helpful in limiting judicial overreach. I think restrained judicial interpretation is favorable to a healthy legislative environment, and that an American conservatism that does not respect our founding documents is not worthy of the name. I'm not really sure how originalism intersects with the common good, and few arguments were given regarding that central issue. In fact I'm not convinced it has any relation at all to the common good in theory, positive or negative. In any case, these articles did get me thinking more deeply about Aristotelian vs. modern political philosophy. (Maybe @Silmarien can help resolve this question about how the common good is popularly thought to relate to originalism)

 

[zippy2006]

So I've been reading other articles related to this, and there are a score of them (just Google "Adrian Vermeule Beyond Originalism"). Some authors at The Jurist suspect that Vermeule is trolling plain and simple (and in any case one can't help but wonder about the rhetorical intent of the piece). Indeed, Vermeule's own rejoinder is unmistakably trollish. James Ceaser thinks Vermeule is regressing to the 16th century. The best article I saw was Josh Hammmer's, "Common Good Originalism."

John Ehrett's, "'Common-Good Constitutionalism' and the Oath-Breaking Problem" seemed to best distill the deepest objection to Vermeule: that it is dishonest and contrary to the judge's duty. He says:

Under current conditions, political leaders in the United States—and their respective subordinate appointees—take an oath of office: “I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.” Historically—as the oath’s four-word coda makes clear—this has always been understood as the taking of an oath before God. The Creator of heaven and earth is invoked as a witness to the solemn act, with the implication that His judgment will follow if the oath is violated.
​

Joe Patrice offers one of the funnier commentaries:

In the era of social distancing, folks can get a little stir crazy. Everywhere you look, someone is touting the new hobby they’ve taken up because of the pandemic that they would never explore without the enforced, alienating solitude. Everyone’s out here baking bread, learning to knit, developing feelings about Tiger King, singing from their balconies, or writing long-form editorials about the importance of embracing authoritarianism (Hey, Can Someone At Harvard Law School Check In On Adrian Vermeule?).
​

Presumably the piece is also resounding in the Catholic world.

 

[Silmarien]

(Maybe @Silmarien can help resolve this question about how the common good is popularly thought to relate to originalism)

I've never actually seen the terms "common good" and originalism used in the same sentence before. Granted, my law school professors were of the critical legal theory school, so extremely progressive, but invoking the common good seems to introduce a moral framework to constitutional analysis that really conflicts with the idea of originalism. I'm unaware of any relation between the two things.

I found the Vermeule article interesting, but... weirdly disjointed, coming from a Harvard Law professor. I was somewhat sympathetic to his perspective (to the extent that I could figure out what he was actually saying, and until he went full authoritarian), but my sympathy is probably the last thing a legal conservative needs.

What a curious set of articles! In the first Vermeule's push for a conservative administrative state is strange, but also helpful insofar as it reveals the value of classical liberalism to the left.

This is an interesting statement, since I would consider classical liberalism to be highly conservative. Its value to the left is limited and... not always all that consistent. (Granted, you and I have different ideas about who actually constitutes the left.)

I would disagree with Vermeule that the Founding Fathers were not, in some sense, classical liberals, though. All that stuff is pure Enlightenment, for better or for worse.

 

[zippy2006]

I've never actually seen the terms "common good" and originalism used in the same sentence before. Granted, my law school professors were of the critical legal theory school, so extremely progressive, but invoking the common good seems to introduce a moral framework to constitutional analysis that really conflicts with the idea of originalism. I'm unaware of any relation between the two things.

Okay, thanks. That makes sense. I can see how invoking the common good is incompatible with American originalism insofar as we were founded on classical liberalism, but I can't see how it is per se opposed (except for the idea that the common good of a society requires an evolving legislative landscape, even at the most fundamental levels, but I didn't see anyone saying that).

I found the Vermeule article interesting, but... weirdly disjointed, coming from a Harvard Law professor. I was somewhat sympathetic to his perspective (to the extent that I could figure out what he was actually saying, and until he went full authoritarian), but my sympathy is probably the last thing a legal conservative needs.

This is an interesting statement, since I would consider classical liberalism to be highly conservative. Its value to the left is limited and... not always all that consistent. (Granted, you and I have different ideas about who actually constitutes the left.)

That's sort of my point. Classical liberalism is uninteresting when you're the only game in town or when no one is fighting back. The (progressive) left has no compelling reason to vie for liberal tolerance and neutrality because they are not threatened by any opposing creed. Vermeule seems to be making a bid to be that opposing creed, and if he were successful I think you would see portions of the progressive left retreat back towards liberalism. Of course everyone knows he will not be successful.

 

[Silmarien]

Okay, thanks. That makes sense. I can see how invoking the common good is incompatible with American originalism insofar as we were founded on classical liberalism, but I can't see how it is per se opposed (except for the idea that the common good of a society requires an evolving legislative landscape, even at the most fundamental levels, but I didn't see anyone saying that).

I'm not really sure how a non-American form of originalism would be different. I suppose if a hypothetical country had a constitution that said that Aristotelian ethics would serve as the ultimate tie-breaker, then you could say that originalism and concern for the common good would be compatible, but I'm not sure there would be much of a point in being an originalist at all in that context. Everyone would just be Aristotelians. (For an actual example of a situation where something like this happens--Sharia law in Islamic countries, but it wouldn't make sense to refer to Muslim legal scholars as originalists or constitutionalists or anything else that comes out of the West.)

I think originalism requires a sort of ethical skepticism to function (to the extent that it functions at all). If you have an underlying ethical framework to work with, be it Catholic social teachings or whatever else, then there's no reason to claim that the original meaning of a founding document should be adhered to. It would be the underlying ethical framework that mattered.

That's sort of my point. Classical liberalism is uninteresting when you're the only game in town or when no one is fighting back. The (progressive) left has no compelling reason to vie for liberal tolerance and neutrality because they are not threatened by any opposing creed. Vermeule seems to be making a bid to be that opposing creed, and if he were successful I think you would see portions of the progressive left retreat back towards liberalism. Of course everyone knows he will not be successful.

Hmm. In the constitutional context, I think this has already happened. At least to a certain extent. Those of us who highly admire the judicial activism of the Warren Court, for example, increasingly have to grapple with the reality of conservative judicial activism, and the question of why it's legitimate for us to legislate from the bench, but not for our political opponents. That's a tricky question if you're not willing to say that decisions like Brown v. Board were wrong.

Beyond that, I don't think that a conservative alternative to originalism would make that much difference. For one, this stuff is largely restricted to the legal world, so whatever the dominant conservative theory of interpretation, be it originalism or something else, most progressives are just going to look at it and say "conservative bad." As for the legal world, like I said... I think most of us realize that conservative judicial activism is already a thing.

(...wow, my spellcheck really hates this post. ism, ism, ism.)

 

[zippy2006]

I'm not really sure how a non-American form of originalism would be different. I suppose if a hypothetical country had a constitution that said that Aristotelian ethics would serve as the ultimate tie-breaker, then you could say that originalism and concern for the common good would be compatible, but I'm not sure there would be much of a point in being an originalist at all in that context. Everyone would just be Aristotelians.

Wouldn't most constitutions enshrine a particular notion of the common good (it could be argued that ours does as well)? I mean, if Aristotle wrote the constitution then originalism would say that we need to interpret that constitution in the context of those times. In that case you end up with Aristotelians who are also originalists. Originalism defines precisely what it means to be an Aristotelian.

(For an actual example of a situation where something like this happens--Sharia law in Islamic countries, but it wouldn't make sense to refer to Muslim legal scholars as originalists or constitutionalists or anything else that comes out of the West.)

It's actually an interesting example, because that essentially does happen in those countries. Interpretive schools are formed, sanctioned, and perpetuated in a way that closely resembles the growth of an interpretive school such as originalism. It's just not quite as obvious because the state doesn't allow the proliferation of different schools.

I think originalism requires a sort of ethical skepticism to function (to the extent that it functions at all). If you have an underlying ethical framework to work with, be it Catholic social teachings or whatever else, then there's no reason to claim that the original meaning of a founding document should be adhered to. It would be the underlying ethical framework that mattered.

I've seen that idea, but it strikes me as a caricature. Originalism seems to me more like "the only game in town." That's how we interpret scripture, religious texts, historical documents, newspaper articles, poetry, scientific treatises, etc. The text outlining "the underlying ethical framework that matters" is interpreted by ...originalism! What you are referring to seems not to be a matter of interpretation, but a matter of whether something ought to be binding. Everyone is an originalist when they want to interpret the constitution, but some do not believe the constitution's interpreted meaning ought to be binding on American citizens 200 years later.

Hmm. In the constitutional context, I think this has already happened. At least to a certain extent. Those of us who highly admire the judicial activism of the Warren Court, for example, increasingly have to grapple with the reality of conservative judicial activism, and the question of why it's legitimate for us to legislate from the bench, but not for our political opponents. That's a tricky question if you're not willing to say that decisions like Brown v. Board were wrong.

Beyond that, I don't think that a conservative alternative to originalism would make that much difference. For one, this stuff is largely restricted to the legal world, so whatever the dominant conservative theory of interpretation, be it originalism or something else, most progressives are just going to look at it and say "conservative bad." As for the legal world, like I said... I think most of us realize that conservative judicial activism is already a thing.

Okay, interesting, but I tend to think that mobilizing more of the conservative bloc away from classical liberalism would have policy consequences beyond judicial activism.

 

[Silmarien]

Would you like to take this to PM, @zippy2006?

I'm not sure if I'm allowed to get into any discussion that might be perceived as an argument in this section, even if the topic is constitutional interpretation rather than Catholicism.

 

[zippy2006]

Would you like to take this to PM, @zippy2006?

I'm not sure if I'm allowed to get into any discussion that might be perceived as an argument in this section, even if the topic is constitutional interpretation rather than Catholicism.

No, let's do it here. See if you can beat me with two hands tied behind your back.

 

[zippy2006]

Here is a great article on Aquinas and Originalism:

Thomas Aquinas Against the Originalists — thomistica

(@Silmarien, I take this to be a solid argument against Originalism, but it's not entirely clear how Originalism can be denied in a system that separates the powers of the legislature and the judiciary such as ours does.)