On March 31, The Atlantic published an important essay by Adrian Vermeule, a Catholic professor of constitutional law at Harvard University, entitled “Beyond Originalism,” igniting a firestorm of controversy within the internet world of legal and political theory. That a secular magazine like The Atlantic would publish an article of such unflinchingly Catholic convictions is remarkable to say the least, and certainly indicates the degree of significance which the article carries for contemporary political and legal discourse. In particular, Vermeule’s article bears great importance for conservative Catholics, many of whom have accepted the theory of originalism without a second thought.
Originalism is broadly defined as a theory of legal interpretation which holds that “constitutional meaning was fixed at the time of the Constitution’s enactment,” and that the practice of jurisprudence ought to be narrowly constrained by that original constitutional meaning. This theory, famously propounded by the late Justice Anton Scalia, also Catholic, has long appeared to be the natural candidate for a conservative jurisprudence since it claims a strict adherence to the original meaning of the American founding documents.
But Professor Vermeule questions the acceptance of this theory, arguing that “originalism has outlived its utility,” and that it is time for conservatives to adopt an alternative, more robust and substantive approach to constitutional law. “Such an approach—one might call it ‘common-good constitutionalism’—should be based on the principles that government helps direct persons, associations, and society generally toward the common good, and that strong rule in the interest of attaining the common good is entirely legitimate.”
This more robust theory of constitutional law diverges radically from both conservative and progressive theories of law, and political theory in general. In contrast to conservative originalist theory, this common-good constitutionalism insists that jurisprudence ought not to be constrained by the letter of the law, and therefore is not limited to merely interpreting the law or the Constitution. As Vermeule writes, “Common-good constitutionalism is not legal positivism, meaning that it is not tethered to particular written instruments of civil law or the will of the legislators who created them.” Indeed, the act of judgment is essential to the very act of making laws in the first place.
Likewise, in contrast to progressivism, common-good constitutionalism rejects the left-liberal project of the “relentless expansion of individualistic autonomy” (a project which many “conservatives” have also adopted, albeit in a milder form), proposing instead a vision in which the goods of the individual are subordinate to the goods of human nature and human community. On such a view, the individual decidedly does not have “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” (Casey vs. Planned Parenthood.)
Again, in contrast to conservative originalism, the reason that individuals do not have such a right is not discerned on the basis of any specific text, such as the Constitution, but on the basis of moral law and the common good. It is up to the institutions and agents of government to discern this moral law and the common good and to implement it through the crafting of civil laws, and the enforcement of them by legitimate coercion. In Professor Vermeule’s words, common-good constitutionalism necessarily involves “a candid willingness to ‘legislate morality,’ ” and it “does not suffer from a horror of political domination and hierarchy, because it sees that law is parental, a wise teacher and an inculcator of good habits.”
Under this scheme, political actors—i.e., those who judge what is lawful—are not constrained by written law, such as a written constitution. On the contrary, it is they who make the laws. Rather than conferring upon them an imagined “unlimited power,” this view acknowledges that they are burdened with the task of judging rightly about what is moral and good. The judge, and in general the lawmaker or the ruler, has the grave obligation to make laws that are in conformity with the moral law itself. The science of jurisprudence, properly conceived, depends on the science of ethics, and is therefore necessarily concerned with moral law. It is this moral law, and not any written law or constitution, that limits the judge—and limits the state itself.
The Catholic tradition itself confirms this radical understanding of law. St. Thomas Aquinas, for example, never taught that rulers are strictly bound by the written law, or that the act of jurisprudence—to judge—was limited to the interpretation of law, even though he taught that it was prudent to change the law as little as possible. Rather, he defined law itself as an act of judgment on the part of the lawgiver, which may indeed be written but is not limited by what is written: “An ordinance of reason for the common good, made by him who has care of the community, and promulgated.” (Summa Theologiae, Ia IIae, q.90, a.4.) Accordingly, the lawgiver himself is not subject to the law as the ruled are subject to it, since he has the power of changing the law: “Again, the sovereign is above the law, in so far as, when it is expedient, he can change the law, and dispense in it according to time and place.” (Ia IIae, q.96, a.5, ad.3.)
Following St. Thomas, the popes, too, have never swayed from teaching that the role of the state is to craft laws which direct human affairs according to what is prescribed in the moral law itself. The state is not in principle limited by its written laws and constitutions—though certainly such conventions may be a prudential guide to the state’s decisions. Rather, the state is limited in principle only by the moral law. As Pope Leo XIII taught in his landmark encyclical Libertas:
Laws come before men live together in society, and have their origin in the natural, and consequently in the eternal, law. The precepts, therefore, of the natural law, contained bodily in the laws of men, have not merely the force of human law, but they possess that higher and more august sanction which belongs to the law of nature and the eternal law. And within the sphere of this kind of laws the duty of the civil legislator is, mainly, to keep the community in obedience by the adoption of a common discipline and by putting restraint upon refractory and viciously inclined men, so that, deterred from evil, they may turn to what is good, or at any rate may avoid causing trouble and disturbance to the State.
The Second Vatican Council, too, in the Pastoral Constitution Gaudium et Spes, preaches that “if the political community is not to be torn apart while everyone follows his own opinion, there must be an authority to direct the energies of all citizens toward the common good.” Furthermore, “It follows also that political authority, both in the community as such and in the representative bodies of the state, must always be exercised within the limits of the moral order and directed toward the common good—with a dynamic concept of that good—according to the juridical order legitimately established or due to be established.”
This doctrine, directly corroborating Professor Vermeule’s common-good constitutionalism, clearly holds that the state must take a position about the moral law, rather than act as the neutral ground where individuals and groups may maximize their autonomy without interference. Whereas originalism would forbid judges and political actors from taking such a position—that is, making a true judgment of reason—about the moral law, the Church advises the state to do exactly this.
Indeed, not only must the state take a stance on the moral law, but it must enforce the moral law by the crafting of civil laws, the punishing of violators, and the coordination of civil actors towards common ends. Such measures should not be feared; indeed, they may be experienced by the citizenry as a boon. Vermeule states that “subjects will come to thank the ruler whose legal strictures, possibly experienced at first as coercive, encourage subjects to form more authentic desires for the individual and common goods, better habits, and beliefs that better track and promote communal well-being.”
It is incoherent for any Catholic conservative, no matter how well-intentioned (as the late Justice Antonin Scalia surely was), to adopt the theory of originalism on the pretext of limiting state power, maximizing freedom, or even preserving some mythical American tradition. The Catholic tradition clearly teaches that the state has the right and the duty to pursue the common good and enforce the moral law for its citizens. In this it is limited not by any written constitution, but only by the very ends which it is bound to pursue: the common good and the moral law. By drawing back from such a full-throated commitment to the state’s role in enforcing a specific conception of the common good, Catholics who accept the theory of originalism risk departing from the teaching of the Church.
Finally, not only would it be incoherent and un-Catholic to accept the theory of originalism, it would also be tactically unwise. Professor Vermeule observes that left-liberalism, perceived by conservatives as “the enemy,” has certainly not shied away from the use of sweeping state power to achieve its ends. It will continue to do so unless the state is seized first by those who will wield it for the common good. Conservatives have objected to Vermeule’s argument that it concedes too much to the proponents of left-liberalism, who will embrace state power to the destruction of moral—and Christian—ends. This is exactly backwards. It is much more probable that by stepping back from state power conservatives will cede the battleground to left-liberalism. It is naïve to hope that, by advocating “small government” and “constitutional limits,” conservatism will somehow prevail against liberalism. The teaching of the Church permits conservative Catholics to shed their fear of the state and adopt a different path: to embrace political power, and to wield it in the service of the true common good, the moral law, and the Church herself.
Image: The Apotheosis of Washington by Constantino Brumidi