Friday, May 8, 2020
Just a brief note to clarify a point about the relationship between common-good constitutionalism and judicial deference. Implausible as it may seem, there is an assumption floating about that common-good constitutionalism entails that judges should decide everything. This isn’t right; it confuses two distinct issues, one of interpretive method and one of institutional allocation. It is one thing to say that the right interpretive method for all officials, not merely judges, is common-good constitutionalism. (I was explicit that legislators as well as judges ought to interpret constitutional principles in light of the common good). But the allocation, across different officials, of authority to ascertain the content of the common good is a separate question. In other words, the common good may itself suggest that judges should defer to other actors under various circumstances, as when those other actors are engaged in reasonable specifications of legal principles — what the classical tradition calls “determinations.”
In fact, as I argued here, and here, and here, and mentioned in a recent interview, the best interpretation of our constitutional practices is that judges do and should broadly defer to the administrative state, within reasonable boundaries, when legislative and executive officials engage in such specifications. (Yet another question is the allocation of authority between legislators and the executive, also addressed in those works; the same idea of authority to engage in reasonable specification or determination is the key to that question as well). This is why I mentioned, as aspects of common-good constitutionalism, giving rulers authority of sufficient scope to allow them to promote the common good, and judicial respect for the legitimate roles of other public bodies.