On the Necessity of a ‘Common Good’: Or, Against Originalism
By now, most people interested in the intersection of politics and academic law have encountered Adrian Vermeule’s recent piece in The Atlantic. The piece, in shortest terms, argues that originalism, as a theory of constitutional interpretation, was developed in a particular historical moment as a counter-move against the ascendency of a left-activist Supreme Court, that the times have changed in a way which renders that defensive posture unnecessary and counterproductive for the right, and that conservatives should now instead coalesce around a theory of the constitution which emphasizes their substantive policy goals instead of a rhetorical posture of anti-politics.
The piece is densely packed, and a great deal has already been said about a number of its ideas and arguments. I here wish to focus on one aspect of those debates. My thesis is that at least one idea advanced by Vermeule, one which will prove perhaps the most hostile to liberals schooled in the tradition of Mill or Rawls as well as originalists, is not only correct, but undeniably so. I mean the idea that a reasonable society must stake out and pursue a comprehensive vision of the common good.
Vermeule and I would probably argue this point from different intellectual traditions, with those traditions basing the argument for it on radically different grounds. My remarks here should be taken in the tradition of what I would call a Benthamite conception of the science of legislation, particularly as developed by the jurist J. F. Stephen.
According to Stephen, it is completely inevitable that a society—or at least, one which meets a certain criterion of minimal rationality—will base its law on one relatively thick conception of the good (we might say “common good”) or another. The positive laws of a society are enacted to effectuate a purpose. This purpose is based on some set of goals that the legislating organ of the state feels to be worthwhile. And these goals, unless they are irrational, are to be grounded in a conception of the good. Inevitable in any human society will be conflict, both conflicts of mere interest and conflicts of values. The former can exist in a mere commercial transaction without significant moral undertones: I can manufacture a product for $10 per unit but do not have the capacity to distribute it and sell it at retail. You can distribute and sell it for $20 per unit but cannot manufacture it. Absent outside options, a mutually advantageous arrangement should be pursued. The bargaining environment will determine whether the per unit price is, say, $12 as opposed to $18, and under this bare description of the situation, it’s unclear that there is any moral salience, as opposed to a conflict of what I have called mere interest, behind the question of the price at which the bargain is struck.
Other human conflicts are irreducibly bound up with fundamental moral values. Take an example drawn from a recent decision of the Supreme Court of the United States. A and B are a gay couple who wish to purchase a wedding cake. C is a baker in the business of, amongst other things, producing and selling wedding cakes. C has a sincerely held belief that gay marriage is intrinsically wrong and that to produce a cake for A and B would necessarily entail placing a seal of approval of sorts on A and B’s wedding. He believes that being compelled to bake the cake would violate his liberty of conscience. Meanwhile, A and B believe that it would represent an infringement on their dignity as persons for it to be permissible to treat their marriage in a manner different from the typical heterosexual wedding.
It does not here matter for my purposes which side is right and which wrong. Indeed, it does not matter whether, as an objective matter, there exists a right point of view or a wrong one in this conflict. What matters is that it is fundamentally different from the market exchange described above. A and B have a radically different conception of the proper understanding of a nexus of fundamental values from C, those values going under such moralistic terminology as ‘liberty,’ ‘equality,’ ‘human dignity,’ and so forth.
A point that Stephen drives home in a radically different context, that of the struggle for the vision of the ‘common good’ to be pursued in India during the period of the British Raj, is that the society cannot help but to take a stance one way or another on our conflict between A and B, on the one hand, and C on the other. In the resolution of the conflict between them, it is not possible for each side to see its view of the set of values I just named validated by the court. Perhaps both sides could ‘lose’—we could think of a resolution to the case which would see each side’s moral values disaffirmed—but it is not true that both sides can win. Further, there’s an extent to which some sort of compromise, a compromise of the ‘split the difference and settle on a price of $15’ sort in the above transaction, is completely unavailable. A and B will either get their cake (and C will be forced to bake it), or not. There is no in between.
Thus, the court, in deciding the case of A and B vs. C, must take sides and choose one set of values or the other. In doing so, it cannot help but articulate a partial view of how the individuals of the society should fit together into a comprehensive whole--without saying where your liberties end and mine begin, or what the substantive requirements for equality are between us, or what the absolute minimal requirements are for respecting the dignity of persons. It need not fully answer all of these questions, but it must partially answer some of them.
Now, if the society is rational—indeed, if it adheres to certain minimal notions of the rule of law--the way that the judges (partially) answer these questions in this case will not contradict the answers given in other cases X, Y, and Z. As different issues arise in different cases, different pieces of the overall puzzle of the society’s guiding principles of political morality will fit into place. The legislature will eventually get involved, passing statutes which contradict this or that court decision, which require adaptation in the body of case law to retain the coherence of our system of political morality, and this will fill in other pieces of the puzzle. The variety of ways that the various legal enactments--statutory, common law, or from any other source—can fit together will narrow. On an infinite time horizon, there will prove to be one and only one coherent way to put the puzzle together.
The argument is thus that it is unavoidable that a society will trend toward the articulation of a single, hegemonic conception of the good, or, as the only alternative, it will behave irrationally, failing to treat like cases alike. It will fail to treat like cases alike if the guiding principles of political morality in our case are incompatible with those espoused by some other court in the same legal system in cases X, Y, and Z. At the limit, it is possible for you to have your picture of the good society—of the way that all of the pieces should be fit together—and for me to have a radically incompatible one. But to the extent we reach an impasse in which you cannot have your way and me mine at the same time, the law must choose one of us as right and the other wrong. It cannot remain neutral. It cannot, ultimately, respect both your views and mine.
I understand most of the steps of this argumentative chain to be completely banal. With regard to some, perhaps the circle can be squared, but it is not obvious how. And, if the argument is right, it is absolutely inevitable that a rational society will gradually come to endorse a single, comprehensive picture of the ‘common good,’ and, when pushed hard enough, will use the force of the state to compel those who disagree with it to fall in line. (Say, by ordering C to produce the cake, at pain of a punitive fine.)
If all of this is correct, we can disagree about what the vision of the common good our society espouses should be. We can disagree about whether A and B have the right conception of political morality or whether C does. What we cannot say is that the society should remain neutral between different moral points of view, that it would be wrong for the state to use force to push one side in a moral controversy to fall in line. (If C, after losing, refuses to bake the cake and to pay the fine, at some point, the police must step in coercively.) On Vermeule’s account, whatever originalists may have in their hearts and minds, the ultimate effect of the ascendancy of their doctrine has been to produce a discourse of anti-politics, to pretend that the judges should not deal with these fundamental moral questions as they decide who is right as who is wrong in concrete cases, but should instead defer to judgements somehow already inscribed in our constitutional order. Inscribed, we should note, by people whose moral convictions were so different from our own that, from a moral point of view, this methodology is sufficiently arbitrary that we might as well flip a coin. To paint with a somewhat overly broad brush, liberals have never had any patience for this sort of anti-politics: they know that abortion and gay marriage are fundamental rights and that it would be completely absurd to flip a coin to decide these issues rather than tackle them head-on. Whatever one thinks of Vermeule’s vision of the common good, it is time for conservatives to abandon the originalist discourse of anti-politics and, like liberals, begin to articulate their own vision of the way your liberties and my human dignity fit together into a comprehensive whole. To do otherwise is to abandon the field to others who will and to resign oneself to occasionally throwing up roadblocks against it which will prove arbitrary in the context of the articulation of that vision, roadblocks which will gradually be removed through the law's process of working itself pure.
This is what I take to be the most fundamental point of Vermeule’s piece and, if, like J.F. Stephen, we are to prioritize the rational coherence of our system of law, there is no reasonable ground to disagree with it.