Mirror of Justice

Abuses of Power

 

As I’ve written at some length, we classical liberals are concerned by the risk of “abuse of power” in constitutional law and political theory. So much so that I don’t want to overlook any form of abuse of power that might potentially occur. 

Some abuses of particular concern are:

* The abuse of economic power, including the powers to engage in costly litigation and lobbying, by corporations wielding common-law rights of property, tort and contract; 

* The abuse of power by the judiciary, especially when invoking “the risk of abuse” in order to abusively impose limits on the power of other actors attempting to prevent or remedy abuses; 

* The abuse of power by state and local governments, especially when abusively resisting attempts by the federal government to prevent or remedy abuses;

* Governmental abuse of the power of inaction, especially in areas where governments could act to prevent or remedy abuses elsewhere on this list;

* Worst of all, the very grave abuse of state power identified by a defender of true liberty: 

“Those who are in authority owe it to the commonwealth not only to provide for its external well-being and the conveniences of life, but still more to consult the welfare of mens’ souls in the wisdom of their legislation. But, for the increase of such benefits, nothing more suitable can be conceived than the laws which have God for their author; and, therefore, they who in their government of the State take no account of these laws abuse political power by causing it to deviate from its proper end and from what nature itself prescribes.”

I look forward to my fellow classical liberals helping me to prevent these abuses at all cost, especially the last. I admit it may be awkward to address all these cross-cutting risks of abuse of power simultaneously, but I do have a suggestion.

Religious Liberty Student Writing Competition

Deadline; July 1, 2020

Sponsored by the Washington DC / Mid-Atlantic Chapter of the J. Reuben Clark Law Society & The International Center for Law and Religion Studies

The purpose of this competition is to promote legal and academic studies in the field of religious liberty by law students pursuing related graduate studies. Students who have graduated from law school, but are not yet practicing law due to clerkships or other similar pursuits are also eligible to submit papers.

Link to full submission details here.

Report: Common-good constitutionalism been spreading in Cambridge, Massachusetts for decades, maybe centuries

Some of the recent alarms about a flare-up of common good constitutionalism in Cambridge, Massachusetts may have underestimated its prior spread. Recent research in the U.S. Reports confirms that high legal authorities deployed common good constitutionalism over a century ago to overcome the resistance of Cambridge resident Henning Jacobson:

The defendant insists that his liberty is invaded when the State subjects him to fine or imprisonment for neglecting or refusing to submit to vaccination; that a compulsory vaccination law is unreasonable, arbitrary and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best; and that the execution of such a law against one who objects to vaccination, no matter for what reason, is nothing short of an assault upon his person. But the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others. This court has more than once recognized it as a fundamental principle that "persons and property are subjected to all kinds of restraints and burdens, in order to secure the general comfort, health, and prosperity of the State; of the perfect right of the legislature to do which no question ever was, or upon acknowledged general principles ever can be made, so far as natural persons are concerned." Railroad Co. v. Husen, 95 U.S. 465, 471; Missouri, Kansas & Texas Ry. Co. v. Haber, 169 U.S. 613, 628, 629; Thorpe v. Rutland & Burlington R.R., 27 Vermont, 140, 148. In Crowley v. Christensen, 137 U.S. 86, 89, we said: "The possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order and morals of the community. Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one's own will. It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others. It is then liberty regulated by law." In the constitution of Massachusetts adopted in 1780 it was laid down as a fundamental principle of the social compact that the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for "the common good," and that government is instituted "for the common good, for the protection, safety, prosperity and happiness of the people, and not for the profit, honor or private interests of any one man, family or class of men." The good and welfare of the Commonwealth, of which the legislature is primarily the judge, is the basis on which the police power rests in Massachusetts. Commonwealth v. Alger, 7 Cush. 53, 84.

Jacobson v. Massachusetts, 197 U.S. 11, 26-27 (1905)

Asked for comment on these findings, area law professors disagreed with this diagnosis of Mr. Jacobson's losing liberty interest. One said this diagnosis mistakes common good constitutionalism for standard police powers analysis rooted in social contract theory. Another claimed compatibility with, and ultimate justification in, John Stuart Mill's "harm principle." A third commented cryptically, "Harlan was no Hercules, but this is the Constitution in 2020." 

The Honesty of Originalism

The debate continues, with a great essay at Law & Liberty by James R. Rogers. As Rogers notes at one point:

There is a cost, however, in reading texts, particularly legal texts, with intentional dishonesty. Doing so debases the language, it debases our political and legal life, and no matter how well-intended, it debases the reader himself or herself. Passing off a convenient faux-interpretation with a wink and a smirk is a short-term remedy with a long-term cost to political culture. It is ultimately a broad form of political corruption.

Common-Good Constitutionalism Interview (English Translation)

Here is the English translation of my interview with Le Grand Continent, the French journal of ideas, on “Common-Good Constitutionalism.” Thanks to Gerardo Munoz and the journal editors for their good offices. 

 

An interview with Adrian Vermeule

Gerardo Muñoz 

 

Adrian Vermeule is the Ralph S. Tyler Professor of Constitutional Law at Harvard University, and one the most important constitutional scholars in the United States. He has written on a wide range of topics that extend from the legitimacy of administrative law to theories of constitutionalism and constitutional design to the nature and development of executive power in the American legal tradition. He is the author, among other books, of The Executive unbound: After the Madisonian Republic (2010) co-written with Eric Posner; The Constitution of rRsk (2014); Law’s Abnegation: from law’s empire to the administrative state (2016), and the forthcoming Law and Leviathan; redeeming the administrative state, (2020) co-written with Cass Sunstein. As a public intellectual, Professor Vermeule is also one of the leading Catholic thinkers in the United States, spearheading a programmatic transformation of the very relation between legality and politics in the wake of the crisis of legal liberalism. In his recent piece “Beyond Originalism,” published in The Atlantic, and which has generated a vital debate, Prof. Vermeule draws a program for a new social and legal design that could impact the heart of American institutions and our understanding of public law itself in the West. In the following exclusive interview for Le Grand Continent we talk about some elements of his program of an “illiberal legalism”. 

 

1. Your piece, “Beyond originalism,” tries to move beyond the most important interpretative approach in American law, “originalism.” At a point, you allude to Justice Elena Kagan’s famous “we are all originalists now.” In your opinion, why has originalism triumphed, at least since Robert Bork’s launching of this concept for the conservative legal movement in the 1980s? 

 

The real title of the piece is “Common-Good Constitutionalism”; The Atlantic magazine just used the phrase “Beyond Originalism” as one of their headings. Originalism became popular among American legal conservatives as a means of appealing over the head of the very left-liberal Warren Court to the supposed “true meaning” of the written Constitution itself. By embracing this sola scriptura tactic, however, American lawyers cut themselves off from the classical legal tradition of the ius commune and the ius publicum Europaeum, in both its common-law and civil-law variants. That tradition influenced the decisions of American courts until quite recently, in historical perspective, but has now been lost to view. The result has been an intellectually and morally impoverished version of positivism, one that that has increasingly been hijacked by radical libertarians such as David French, who have exploited the lack of substantive moral content in the new method. My piece is an attempt to dispel this self-induced amnesia and to renew the older tradition.

 

2. The core of your argument in the piece is to defend what you call a “common-good constitutionalism.” Obviously, this resonates with a recent endorsement of this idea in order to meet the challenges of globalization and the rise of China. Do you conceive the principle of the ‘common-good’ as a hermeneutic strategy for lawyers and judges, or as a ground for public officials regardless of their partisan commitments?  

 

The common good is a concept with deep roots in the ius publicum Europaeum, canon law, political and moral theology, and — my major inspiration for the piece — the ragion di stato tradition in early modern European political theory. The famous trinity of the aims of government identified by the ragion di stato was “peace, justice and abundance.” I believe we can develop this tradition in all fidelity, in the age of the coronavirus, by adding “health and safety,” including a well-ordered relationship to the environment and the natural world (as articulated in the majestic document Laudato Si). These aims transcend partisan divides and cut across the usual political divisions.

 

3. You note that the great Liberal constitutional scholar Ronald Dworkin famously defended a “moral reading of the constitution,” and throughout the last two the centuries Liberalism has been systematically criticized for its intrinsic arbitrary morality. How does a “common-good morality” differ, and how could it transform our understanding of public law? 

 

In my view liberalism is in essence an elite anti-morality of rebellion, the relentless celebration of a perverse sacrament of liberation from all constraints of morality, nature and just authority. In this way liberalism destabilizes its own subject communities and provokes backlash, eventually undermining its own claim to rule; we see the consequences all around us today. Against this backdrop, Dworkin’s main intellectual value in my view is negative; he exposes originalism as necessarily based on suppressed normative arguments that originalism wishes to deny. His own affirmative normative views, however, are hopelessly inadequate and impoverished, for the same reason that originalism is impoverished — both are cut off from the common good. The answer to Dworkin’s liberalism is not originalist pseudo-neutrality, but the genuine impartiality and public-spiritedness that comes with the moral objectivity of the common good.

 

4. As one of the foremost scholars of administrative law in the United States, how relevant is the role of the administrative state in carrying forward and providing legitimacy to “common-good constitutionalism,” and how does a ‘strong executive’ fit in this picture? (The administrative state, to remind our French readers, has been even called “unlawful” by libertarian constitutionalists). And secondly, why is the Catholic tradition fundamental to transform the American ideals? 

 

 

I am cautiously optimistic about the possibilities for a genuinely Catholic-inspired, solidaristic economics in the United States today — not as a final end goal, but as an interim situation that is better than the status quo ante of relentless, bipartisan neoliberalism. The main institutional locale for this program will have to be the administrative state, if only faute de mieux. We tend to forget that the New Deal, during which much of the current U.S. administrative state was cemented into place, was partly inspired by the principles of Catholic social teaching; in an important campaign speech in 1932, Franklin Roosevelt quoted from Pius XI’s Quadregesimo Anno and called it “one of the most important documents of modern times ... it is as radical as I am.” Recently, leaders such as Senator Marco Rubio have begun to articulate a humane economics, oriented towards the common good, explicitly drawing upon Catholic social teaching. It remains to be seen whether that development will continue in the right directions, but it is an encouraging start. This could very well commence under a series of conditions: (1) under a constitutional principle of solidarity; (2) subject to reasonable administrative discretion (the determinatio); (3) and the understanding that whether and to what extent the principle is judicially enforceable is a separate institutional question.

 

5. One last question: we know that part of the success of originalism has been their competence in creating organizations for elite reproduction, such as the Federalist Society. Do you imagine something similar to this organization in order to form a new intellectual and judicial elite committed to the principles of the “common-good”? 

 

The Federalist Society contains a number of members, including students, lawyers and judges, who are deeply dissatisfied with originalism and are searching for alternatives (although some feel constrained from saying so publicly; you should see my emails). Hence I think it could easily be “integrated from within.” But don’t tell them I said so! 

 

Thank you for your thoughtful responses, Professor Vermeule. 

The Pandemic and Religious Revival

An article posted today at First Things raises an interesting question. How will the COVID-19 pandemic influence faith and spirituality in American public life? As noted:

Throughout history, periods of mass trauma have often sparked religious revivals. The global pandemic coincides with the seventy-fifth anniversary of the end of World War II. That traumatic, bloody conflict led many to turn to God. This also happened in the United States in the weeks following September 11, 2001, arguably the greatest tragedy in American history. Immediately after the terrorist attacks, growing numbers of Americans prayed more, and nearly eight in ten claimed that religion was increasingly important in American public life (much more so than in March 2001, for instance).

Interview on Common-Good Constitutionalism (en Francais)

An interview I did on “Common-Good Constitutionalism” for a French journal of ideas, Le Grand Continent. The English version will follow. Thanks to Gerardo Munoz.

https://legrandcontinent.eu/fr/2020/04/17/adrian-vermeule/

Cardinal George Pell’s Acquittal

The unanimous decision by Australia’s High Court to quash Cardinal George Pell’s convictions on charges of “historic sexual abuse” and acquit him of those crimes was entirely welcome. Truth and justice were served. An innocent man was freed from imprisonment. The criminal justice system in the State of Victoria was informed by Australia’s supreme judicial authority that it had gotten things badly wrong. The anti-Pell haters in the Australian media were reminded that their power has limits

Full article at First Things.

Coronavirus Crisis Makes Curtail of Religious Freedom Justifiable — Temporarily

Both the scope and limits of religious freedom are hot topics for Catholics, and properly so in a world contending with the COVID-19 pandemic, in which the Holy Father and most of our bishops are accepting severe limits imposed by governments.

In the United States, the Catholic understanding of the common good requires us to accept and to participate in our current policies, much as Catholics have fought with distinction in our nation’s wars. But even legitimate public-health concerns do not exist in a vacuum. Effectively shutting down American society has its own devastating effects on the spiritual, social and economic common good. 

Full article at National Catholic Register.

Supreme Court reschedules religious liberty cases for historic telephonic oral arguments

The Supreme Court has rescheduled oral argument in three Becket cases, Our Lady of Guadalupe School v. Morrissey-Berru, St. James Catholic School v. Biel, and Little Sisters of the Poor v. Commonwealth of Pennsylvania for early May.

Full press release from Becket here.