Adrian Vermeule's much anticipated book, Common Good Constitutionalism, is coming out soon, and is available for purchase on Amazon, etc. MOJ readers are likely familiar with the project, not only from Adrian's MOJ contributions in the past, but also from writings at, e.g., Ius et Iustitium (also here) and The Atlantic and, recently, The New York Times.
I expect that Adrian's book and argument will be of interest to MOJ writers and contributors, and I hope that many of my co-bloggers will read the book, and share their thoughts about it. Given (inter alia) St. Thomas's well known definition of law as "an ordinance of reason for the common good, made by him who has care of the community, and promulgated", there can be no doubt that the idea/aim/end of "the common good" -- which is, of course, not understood in the Catholic tradition as "the greatest good for the greatest number" or in merely utilitarian terms but instead as the network/sum of social conditions which enable human persons and societies to flourish -- is crucial to any Catholic legal theory and, it would seem, to any Catholic account of the enterprise of constitutionalism.
The questions that I have about Adrian's proposal, and about others to which "common good constitutionalism" is attached, have to do not so much with the question whether those who are authorized to make laws should do so with an eye toward promoting and protecting -- to the extent possible and feasible, this side of Heaven -- the common good of the relevant political community. Instead, my questions have to do more with these proposals' implications for constitutional interpretation by federal judges who, in our context, are authorized to decide cases and controversies only by virtue of the positive-law-fact that the federal judicial power has been vested as it has. To have such questions is not, of course, to be a "positivist" or "relativist." But it is not clear to me why (as I gather Adrian argues) that an appropriate appreciation for the fact that a political community's positive laws should promote and protect the common good, correctly understood, means that "originalism" is not the appropriate methodology for identifying the judicially enforceable content of the positive laws that we have.
In any event . . . I look forward to reading and learning more.
Here (Our Sunday Visitor) and here (The Volokh Conspiracy) are some quick comments I contributed regarding yesterday's oral arguments in the Dobbs case. In my view, the justices will, and should, jettison Roe and Casey, and adopt the approach for which the late Chief Justice, William Rehnquist, advocated in his Casey dissent. A bit:
To be sure, it makes sense for the court to value stability and predictability in the law. Sometimes, there are good reasons to carry on with a past mistake. And it is important that the court not only be perceived as, but in fact be, a judicial, not a merely political, institution. The meaning of the Constitution should not and does not change simply because its composition does.
The justices who are presumed to be Casey-defenders warned repeatedly, in their questioning, that to return the abortion-regulation question to the political process would damage the court, its standing and its reputation. In fact, the opposite is true: Were the justices to yield to political and media pressure and to concoct yet another abortion-regulation-evaluation mechanism with no basis in the Constitution’s text, their standing as an apolitical judicial body would suffer irrevocably. . . .
At one point during the arguments, Justice Sotomayor observed that many of the most famous cases where the court rejected past precedent involved expanding the rights of individuals. In her view, this fact weighed strongly against undoing the errors in Roe and Casey.
Her view is wrong, though, for at least two reasons. First, reversing Roe will respect the rights of individual citizens to have a say, and to try to convince their neighbors on a fundamental moral and policy question. Next, and no less important, the court’s confession of error would repair the damage done to our Constitution by its earlier ruling that excludes, categorically, the most vulnerable persons among us from the law’s protections. That would not be the end of the pro-life effort, but it would be a welcome step nonetheless.
Here is a short opinion piece, which I wrote with my Notre Dame Law School student, Olivia Rogers, on the Supreme Court's upcoming school-funding case, Carson v. Makin. A bit:
Across the country, parents and communities are demanding choice, opportunity and accountability in education. Any meaningful response to these demands will include authentically religious schools and will support those who choose them. In Carson, the justices should reaffirm that the Constitution does not permit governments to discriminate against vital partners in the crucial, common task of educating children.
The Harvard Journal of Law and Public Policy has published, online, an article-ized version of the amicus brief that Chuck Cooper and his colleagues submitted -- and that I was pleased to join -- in the Dobbs case. It's called "Roe and Casey Were Grievously Wrong and Should Be Overruled." As it happens, the title captures pretty well the argument!
In my experience, preachers in Catholic parishes don't know quite what to do with the Feast of Christ the King, which is today. Usually, the day's "message" or "theme" has been (again, in my experience) something to the effect that we should ask if we are "putting Jesus first in our lives/hearts" (and, certainly, we should).
And yet . . . especially in light of the emerging (and much needed) focus in the Church on religious liberty and the realities of both aggressive secularism and persecution, it's worth (re-)reading Quas Primas, the encyclical of Pope Pius XI that instituted the feast day in 1925, and remembering that this institution's purpose sounded more in political theology than in personal piety and devotion. This feast is a reminder that government is not all, that there are things which are not Caesar's, and that everything, in the end, is "under God." A bit:
"[T]he Church, founded by Christ as a perfect society, has a natural and inalienable right to perfect freedom and immunity from the power of the state; and that in fulfilling the task committed to her by God of teaching, ruling, and guiding to eternal bliss those who belong to the kingdom of Christ, she cannot be subject to any external power."
The Notre Dame Law School was honored to welcome Prof. Mary Ann Glendon, who delivered on Wednesday the inaugural Rice-Hasson Distinguished Lecture. Her topic was "Human Ecology and the Lawyer's Vocation." You can watch a recording of the lecture, here.
Prof. Glendon drew on writings of Pope Francis and his two predecessors, to develop the intriguing proposal that our cultural, institutional, and human "ecology" requires care, attention, and stewardship, no less than our natural/environmental one.
The Dean Search Committee for the Boston College Law School has been announced. Former MOJ-er Vince Rougeau (now President of the College of the Holy Cross) has left big shoes to fill! Good luck to BC!
My friend and colleague, Carter Snead -- whose work is almost certainly familiar to MOJ readers -- has an excellent op-ed in The Washington Post, called "Critics of Texas's Convoluted Abortion Law Have a Point: The Solution is To Overrule Roe v. Wade." A bit:
[W]hy are we now reduced to having a fevered meta-argument about procedural technicalities regarding the jurisdiction of federal courts? In short, it is because Texas was fed up with the interminable cycle of crafting laws to protect the unborn, followed inexorably by injunctions and years of litigation before judges seeking to apply indeterminate standards stemming from a constitutionally unwarranted power grab by the Supreme Court.
There is a road back to normalcy. The Supreme Court can put us on it by dismantling its ill-founded abortion law apparatus and freeing the American people to reason together, just like our friends in numerous other countries including England, France, and Germany have been free to do, and enact laws that protect and care properly for women, children (born and unborn) and families in need.
Ed Condon has this piece, at The Pillar, which includes some (sadly) typically obtuse comments by Cardinal Parolin. To be sure, it is not only the PRC, among political authorities, that purports to demand of Catholics that they be "good citizens" first. Some might say that the PRC and its apologists simply "say the quiet part out loud." And, it is far from obvious what the all-things-considered best way is for the Church to deal with the PRC, and best care for Catholics in China and bear witness to the faith there. I feel confident, though, that Parolin's inclinations and ruminations are not a reliable guide to finding it.
