Barnett 2020 Common Good Constitutionalism Dangers

Barnett, Randy Dangers (PDF) 2020-04-03
Response to Vermeule's Common Good Constitutionalism

• [common-good constitutionalism] “Such an approach,” he writes, “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.” He adds that this approach will give the government “ample power to cope with large-scale crises of public health and well-being—reading ‘health’ in many senses, not only literal and physical but also metaphorical and social” (emphasis mine [Barnett's]).
• Above all, common-good constitutionalism requires “a candid willingness to ‘legislate morality’--indeed, a recognition that all legislation is necessarily founded on some substantive conception of morality, and that the promotion of morality is a core and legitimate function of authority.”
• “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.”
• Vermeule views originalism, with its focus on the original meaning of the text of the written Constitution, to be an obstacle to this agenda.
• Indeed, Vermeule rejects textualism altogether: “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.”
• This is nothing but conservative living constitutionalism.
• Common-good constitutionalism is methodologically Dworkinian, but advocates a very different set of substantive moral commitments and priorities from Dworkin’s, which were of a conventionally left-liberal bent.”
• While he does not discuss it, we can expect Vermeule to want judges to defer to the moral opinions of legislators.
• A moral-readings approach like Vermeule’s raises some obvious questions:
  • What qualifies state legislators to make spiritual choices that will be imposed on nonconsenting citizens? What will legislative debates about morality look like? Who will be called as witnesses in legislative hearings? The inevitable answer is that legislators will just vote their own morality and the legislative majority will prevail. In the legislature, might will make right. (The state-sanctioned segregation upheld in Plessy is a good example of this.)
  • Assuming there is any judicial review left, what in judges’ training qualifies them to assess these competing moral claims on which legislation is to be solely based? Answer: Nothing.
  • Above all, what happens to social peace as the government starts incarcerating the dissenting minority for failing to adhere to their moral duties? Religious war, anyone?
• He does not even acknowledge that such questions exist.
• Vermeule’s article should put both conservatives and progressives on notice that the conservative living-constitutionalism virus has been loosed upon the body politic.
• We can all be grateful to Vermeule for firing so visible a shot across the originalist bow. Forewarned is forearmed.
• There is nothing subtle or surreptitious about the challenge common-good constitutionalism poses to originalism.