Justice Amy Coney Barrett has given her views on common good constitutionalism several times now, provoking an response and follow up post from Professor Adrian Vermeule. Rather than repeating that exchange, I want to consider a further conversation between Justice Barrett and Bishop Robert Barron in which she expanded on her objections with common good constitutionalism in relation to the function of law.[1] The discussion presents an opportunity to examine, in greater detail, the value of the classical lawyer’s textualism. My central claim is that the chief disagreement between mainstream originalists and more classically inclined jurists is about the relation of reason to the exercise of sovereign will and its consequent impact of law, conceived of as a rational ordinance, within adjudication. Positivist originalists reduce legal interpretation to a formalistic exercise, denuding the text of its very reason. Common good constitutionalism does not reject the text; its method achieves the ultimate fulfilment of the law, acknowledging its proper nature.
This essay will proceed in two sections. In the first section I will examine the textualist commitments of common good constitutionalists. What will become apparent is that the text of the law is of great importance, interpreted in its proper context within the wider body of law, according to its proper nature. In the second section I will argue that the nature of the judicial power is consonant with such an interpretative method. That much should suffice for this work. It is clear from her conversation that Justice Barrett’s views are rooted in a liberal political conceptualization of the Constitution and law which sees it not as directive but merely procedural and rights-protective, but to address that directly would overextend the present essay’s scope; that is perhaps work for another day.
(i) The textualism of common good constitutionalists
Public meaning originalists and textualists, like Justice Barrett,[2] will acknowledge that the indiscernible subjective intent of the legislator does not matter but the meaning received by the people upon promulgation. As she said in her confirmation hearing, her originalism means that the Constitution’s “meaning does not change over time, and it is not up to me to update it or infuse my own policy views into it”.[3] To infuse partisan policy views into the law itself would certainly not accord with the function of a judge. But are we really to say then that original public meaning is dispositive? I’m not so sure; that seems reductive. In fact, Justice Barrett presents a false dichotomy of original public meaning or judicial activism.
Classical constitutionalists would be as, if not more, surprised and repulsed by a view which would practically dispose of the law, to use it as a pretext for “veering away from that [the law of the Constitution] and reading into it our own individual ideas of the common good” than even Justice Barrett is. She says that because individual Justices might differ in their views of the common good, there is an external objective “document like the Constitution because it’s a point of consensus and common ground”. She makes two highly contestable claims here: that classical constitutionalists replace law with private opinions and that, therefore, a form of textualism (that is, her own) is the preferable way to construe the Constitution.
Justice Barrett wants us to be faithful to the text of the Constitution. No classical lawyer would dream of anything other than to interpret and construe the text of the Constitution correctly. That’s precisely the issue, not if textualism is correct, but what approach to textualism is the right one. The Constitution is an embodiment of certain rules of practical political reason to establish a government conducive to the common good. It is precisely because it is such an ordinance for the common good that the classical constitutionalist has reverence for the text. That the text ought to be respected is a point in common between Justice Barrett and common good constitutionalists. The proposition which seems to trouble Justice Barrett is the positive affirmation of ius, of higher principles’ applicability to construing the lex, the written wordsof the Constitution. That’s not the same as departing from the Constitution. It may well be that these principles shed light on the internal meaning of the text and the extent of its applicability which cannot be seen via myopic focus on original public meaning. It is a misunderstanding of the whole project of common good constitutionalism, then, to compare it to judicial activism.
There are two points to be discussed here. The first is, what principle, within the system of the laws of a particular State, considered as a coherent system, guides how we construe a particular provision of the law? Second, and relatedly, is where does state-made law fit in with the wider principles of justice? I will return to this second question in a later essay on ‘Common Good Originalism’, though I hope an answer will be implicit in what follows.
As to the principles within the coherent system of law guiding our construction of laws, we have, the maxim ratio legis est anima legis, and others related to it. For example, Sir Edward Coke laid down in Milborn’s Case, that “reason is the soul of the law; the reason of the law being changed, the law is also changed”.[4] That ‘reason’ itself is part of many different principles of law is not one foreign or newly brought to the United States. Besides being part of the very nature of law, the notion of ‘reason’ as essential to the positive law is embedded in U.S. jurisprudence. Consider Justice Harlan’s dissent in Plessy v. Ferguson.[5] He took great pains to emphasize that the Constitution requires that courts give effect to the text of legislation, even if it is “unreasonable” from the perspective of public policy, because each branch of government “must keep within the limits defined by the Constitution”.[6] Nevertheless:
“Statutes must always have a reasonable construction. Sometimes they are to be construed strictly; sometimes, liberally, in order to carry out the legislative will. But however construed, the intent of the legislature is to be respected, if the particular statute in question is valid, although the courts, looking at the public interests, may conceive the statute to be both unreasonable and impolitic” (emphasis added)”.[7]
Considerations of the common good, therefore, are not simply politics by other means. They are part of the internal reason of the law itself. That is, law considered as a rational ordinance of the public authority is to be given a rational construction and interpretation, within the system of state-made law itself. The issue of invalidating statutes, at this level, arises where a rational construction of the text of the Constitution would require it. Rational construction is implied in the nature of the judicial power whose role it is to construe laws “in order to carry out the legislative will”, in Justice Harlan’s words. The lawgiver is presumed to will reasonably, therefore the judiciary construes the laws in their most reasonable sense. I may go so far as to say that it is because law is not a simple act of coercion, but an act of rational will, that this presumption exists. It matters little if the subjective agent personally intended to act irrationally, for inasmuch as law exists objectively in a society that the community might be ordered to its good, it must be conditioned by reason and treated as such in so far as is practicable and consistent with the role of the judiciary. At least, the tradition of which Justice Harlan was a part seems to imply this to be the case.
One should not understand rational construction to be an importation of partisan ideas into the business of neutral judging. For one who has been formed in a hollowed-out theory of law this might be a hard ask. But it is one which is entirely consistent with the basis of the American constitutional system. The principal object of the phrase ‘rational construction’ is emphatically not an immediate resort to the first principles of morality. This would tend to subvert the order of the law with everyone looking beyond settled canons to give their own opinion of the reasonableness of a law or its application in a given context. Natural reason comes at a much later stage. Instead, the classical lawyer is simply referring to the basic principle Sir Edward Coke laid down in the Case of Prohibitions.[8] It is not beyond the law that we look to determine its rationality in conducing to the common good, but rather we look first within the law for that purpose. So it is that Coke says, that legal cases and controversies are “not to be decided by natural reason but by the artificial reason and judgment of law”, and it is in this way alone “that law was the golden met-wand and measure” to try both criminal and civil cases.[9]
Justice Barrett surely considers law to be a “golden met-wand” but, at least in her constitutional theorizing, she underappreciates that law is a straight measure only insofar as it is a particularization of the sovereign’s reasonable will. This reasonable will is, conditioned by the requirements of the local laws and judicial precedents of the United States and the ius commune, that is, the inheritance from Europe synthesizing, “Roman law, canon law and civil law”,[10] then general moral principles. There is no shortcut to moral law if the classical lawyer simply does not like a legislative pronouncement; he is bounded in on every side by a legion of principles and rules. Indeed, the moral law itself requires deference to the public authority charged with making discretionary decisions about the common good. Aristotle, later endorsed in this by Aquinas, thus summarized the view of the ancients: “it is better that all things be regulated by law, than left to be decided by judges”.[11]
In times past, Vermeule observes, the Supreme Court has not been shy to use the ius commune, in decisions like Coffin v. US,[12] before a positivist smoke seemed to obscure the vision of so many in the legal profession. Only after taking the steps from local law, then to the ius commune and its British offspring from which the American system sprang, do fundamental moral principles usually become relevant. That is to say, one moves by steps from particularity to greater generality when treating of principles. It is only when the rules at one level prove insufficient that a higher level might be sought to clarify the rational intention of the lawmaker. In that matters might become more obscure for the intellect the higher one goes, this is the best thing to do as a matter of common sense, even apart from the law. In this, we might interpret the centuries-old practice in common law nations, including the United States, of interpreting statutes in light of existing laws and the values embedded in them (commonly referred to in the Commonwealth as the ‘principle of legality’) to be rooted.[13]
So, rational principles of law, embedded in existing statutes, precedents, legal maxims, and the wider context of the ius commune, provide the context within which to assess the sort of effect the legislator intended his pronouncement to have. The legal values within a text, inasmuch as they are principles of legal reason pull a legal text, even if it might represent a radical shift, in their direction because law exists in the wider context of principles. They may be said to have a sort of “gravitational force on the text, pulling its meaning in their direction”.[14] It is impossible for this not to be the case because all legal instruments and systems are embedded in a prior normative and temporal context. If I may be indulged in extending the gravitational analogy, a law is like an object placed on the fabric of space-time: it not only has a force of its own which may affect other ‘legal objects’ (statutes, maxims and the like), but it is also conditioned by them. To return from the abstraction, Justice Scalia’s own formulation that the judiciary ought not to make nonsense of the corpus juris, unless statute clearly requires otherwise, makes a similar point.[15] A statute is construed to fit “most logically and comfortably into the body of both previously and subsequently enacted law”.[16] I hope Justice Barrett has the same desire, but it is one of a fundamentally classical character.
Rather than being a front for partisan politics in the judiciary, then, common good constitutionalism is summed up by the proposition that legal practice ought to return to a more principled way of practicing, one which seeks a restoration of the rich legal heritage embedded within local legal systems. In many ways, in that judges already routinely apply precedent and written laws, many from a time when the classical tradition was still acknowledged, it is a call to a more consistent practice of lawyering which thus better serves the general welfare of the nation by making adjudication more closely conformed to the reason of the law, and not simply its bare will. Fidelity to legal texts is admirable, but fidelity should not be blind to the reason, the rationality, required by the essence of law itself. Even from an originalist perspective, the use of the ius commune should be relatively uncontroversial, as forming the general context within which the European-derived American legal system has grown up. Certainly, if British and, before that, English precedents are used in constitutional adjudication, there is no principled distinction to exclude the ius commune in general from being considered in constitutional interpretation, as they are not so far from one another as is often made out to be the case.[17]
It is strange, therefore, that Justice Barrett should imply that the common good constitutionalist seeks to improperly impose his policy preferences on the rest of the nation through judicial subterfuge, whereas the very commitment of such theorists to what Coke calls “the artificial reason and judgment of law” would prevent them from such impropriety. I do not mean to suggest that Justice Barrett’s textualism inherently excludes reason, but that it assigns reason, so far as the judiciary’s consideration of a law goes, a subordinate role to enactment. That is, for her, law seems primarily a matter of will, legal reason being a simple handmaid to that will as far as judges are concerned. The judgment of natural reason as that which announces both the requirements of the common good and moral law to the person may have a larger role during enactment but, for her, that is not the judges concern. She does not consider properly the way in which principles, as such, in the structure of the law, in the ius commune etc. might have a function in the work of judging. Is not the judge required to consider, in some way, to what end is that the ruler’s will is exercised to properly assess and apply a given enactment?
Law is not an end in itself; rules are tedious if they serve no purpose. The will of the ruler is exercised to achieve some rational good for the public welfare. Inasmuch as law has this for its end, its telos, it follows that reason precedes will in ordering the exercise thereof to some reasonable object. Just as, in the moral act, reason is the formal cause of the will,[18] so one may say that reason is the formal cause of the law, and enactment and promulgation are its efficient cause. Inasmuch as a formal cause precedes and conditions an efficient cause, so reason precedes and conditions will where human law is concerned. Not only is reason, embodied in the tools of the judge, a handmaid of legislative will but it is also that which justifies and provides some human value to the exercise of that will. As such, the judge ought to interpret the law not simply as a product of a particular set of human circumstances but, where necessary, in light of wider principles, many of which are embodied in the “artificial reason” of the law and will be sufficient for most purposes. That is, a textualism that is truly at the service of law much serve its whole nature as both a rational ordinance and a voluntary act of the ruler. Simply put, the words of the law without reason are vain.[19]
From the foregoing it should be clear that common good constitutionalists are committed to law and legal principles, precisely in order that the text of enactments is best interpreted as it ought to be interpreted. Justice Barrett, however, as her comments when speaking to Bishop Barron indicate, seems to think that common good constitutionalism is the adoption of a progressive methodology but with conservative objects in mind. In criticizing progressives, she says that their methodology treats the meaning of legal enactments as “so open-ended that it can mean anything” leading to no consensus being achieved, for which reason, I suppose, the original public meaning of the text must control the interpretation of the text. Words must not be divorced from original meaning so as to be “infinitely malleable”. That this is the meaning she intends to convey is evident later in the interview when she is discussing Roe v. Wade and the definition of “liberty” in the Due Process Clause in that she said that the word cannot be allowed to be “an empty vessel” to the detriment of democratic control over moral questions such as abortion. These, in her view, are left open to be legislated on under the Constitution. Justice Barrett’s criticism of progressives might be correct. But to essentially use the same criticism for classical constitutionalists is a strawman. That they substitute their own policy views for the meaning of the law, supplanting the proper role of the legislature or the people themselves in convention amending the Constitution,[20] is not a fair reading of the theory at all.
Not only does the Justice strawman classical constitutionalists, she claims too much for the originalists, for in that reasonable originalists might differ on how to interpret a text at a basic level, say in the Bostock case,[21] or where historicizing cannot fix or liquidate meaning,[22] her preferred methodology is not as much of a consensus-builder as she makes it out to be. I could put it in no better words than Justice Barrett herself who said in her confirmation hearing, “all originalists do not necessarily agree”.[23] They do not agree because they have difficulty in fixing historical meaning, or they disagree as to the level of generality at which provisions ought to be read, or because they disagree about whether precedents should be allowed to stand or not in light of historical meaning. On this last, Justice Clarence Thomas is well known for taking a strong position in favour of nullifying precedents when they conflict with what he identifies as the certain historical meaning: fiat sensus primigenitus, ruat caelum indeed.[24] The late Justice Antonin Scalia sharply disagreed with him on this point, as he famously quipped, “I’m a texualist. I’m an originalist. I’m not a nut”.[25] That may be so, but it also shows how originalists have no unique methodology to achieving consensus but have a myriad of internal disagreements. It is hopeless to argue that it is a consensus builder, for how is it possible to make independent persons with different intellects converge on the knotty questions of interpretation? We must simply determine which way of interpreting the text is correct, not whether it tends towards consensus.
Consensus, if it may be found, may be appealing. Yet the force of the common good constitutionalist’s account turns on whether, as Richard Ekins has said, they speak “truly about the principles that should frame the foundation and exercise of public power, principles that do not depend for their truth on the contingent question of how many people – or indeed whether any persons here and now – accept them”.[26] That, I believe, they do.
(ii) Does the nature of judicial power preclude the validity of common good constitutionalism as an interpretive framework?
Accordingly, let’s consider the second prong of Justice Barrett’s criticism of common good constitutionalists which she makes also of progressives. She says that it is legislators who “have … the duty to pursue the common good” and that the judiciary’s authority is “circumscribed” such that the judiciary cannot make common good judgements. As such, on her view, the judiciary ought always to refrain from considering the common good as such, leaving it wholly to the wisdom of the legislator. Here she equivocates between two quite different forms of common good judgements. The legal reason I described earlier is clearly “not the same as the discretionary prudential decision making of “political” officials”.[27] The judiciary, as Alexander Hamilton wrote in Federalist No. 78, has “neither force nor will, but merely judgment”, and it is this judging capacity which is engaged by their own particular common good considerations, and the exercise of force and will, and their attendant considerations, remain with political officials.
There is no question of judges substituting their legal adjudication for ‘political’ judgment. Judges are indeed circumscribed in their authority, acting in an ancillary capacity to the primary decision-makers who are the legislators. A judge, thus conceived, is a minister, or servant, of the law and not its master. But neither is a lawmaking official, properly conceived, the master of the law in its final sense. For the supreme norm is the good, or the welfare, of the people to which all legal instruments are ordered: salus populi suprema lex. It is the common good itself as the end of the community apprehended by reason which is the final norm.Any interpretive method tending to controvert that end, by making nonsense of the rationality of law, allowing, even if only in principle, the possibility of arbitrary lawmaking, is invalid in that it contradicts the very nature of law as a rational rule ordained for the general welfare. As such, the very nature of law places the officials who have some relation to it, executive, legislative, and judicial, in a position of subordination to it. The ‘political’ branches, that is, those entrusted with discretionary prudential determinations, serve the law by making rules consistent with the rational order of human beings existing in political society and their temporal good or by executing them appropriately and not in an arbitrary manner. The judicial branch serves the law by interpreting public ordinances in light of the nature of law, as an ordinance of reason, and to that end makes use of principles within the legal system, the ius commune, and, failing those, of morality in general.
That said, someone who carefully considers what Justice Barrett said in criticizing progressives and common good constitutionalism will see another, underdeveloped, line of criticism supportive of her point about the separation of powers in a democratic society. Her point against words being treated as empty vessels was directed against judges reading into them “whatever rights they want because otherwise we lose […] democracy”. A similar point might be made by a careless reader of Adrian Vermeule’s work, by citing the sentence in his essay Beyond Originalism that his approach takes “as its starting point substantive moral principles that conduce to the common good, principles that officials (including, but by no means limited to, judges) should read into the majestic generalities and ambiguities of the written Constitution” (emphasis added).[28] However no stock should be placed in interpretations of this phrasing which misrepresent its author as subverting the Constitution from within because, as his 2022 book indicates, he simply means to refer to the generalities of the Constitution allowing of themselves for a wider reading, including substantive moral interpretation.[29] This is a question of at what level of generality we should interpret the text, the ordinary stuff of lawyering; it should hardly be controversial.
As Chief Justice John Marshall said, “we must never forget that it is a Constitution we are expounding”.[30] It is not historical analysis that we are performing, though that may be a tool to aid us. We are certainly not performing literary analysis, aimed at penetrating the inmost thoughts of the ones who wrote the Constitution. No, but we are interpreting a legal text, conditioned by the principles and purpose of law, to serve the rational ordering of the body politic to the end that it may produce public felicity. As such, the communicative content of a text as understood in its original historical context may well differ from its legal content over time. It is important, then, to isolate what the essential content of the text is, so that we are not left petrified in the particular controversies of the past. As many laws, and certainly the Constitution, are not given for a single time but for many generations to come, it is necessary that the originally understood sense be not dispositive but the text be interpreted as proportionate to the needs of future times. This is particularly true of the generalities of such texts. There may be different modes of interpreting a single text, but the lawyer’s mode is the legal one, and the very end for which the Constitution was formulated may require us to interpret it at a greater level of generality than previous interpreters, not to contradict the text, but precisely “in order to carry out the legislative will”.[31]
If, as Marbury v. Madison, establishes, it is “emphatically the province and duty of the Judicial Branch” to interpret the law,[32] then it is in its province to give a rational interpretation conducive to the common good, itself implied by the exercise of legislative will. Some different questions will arise interpreting a statute as compared to the Constitution, given their different proximate objects and, in the U.S., their relative ages, but the basic principles undergirding their interpretation remain the same because both are a species of law. It is simply a non sequitur to suggest, as some do,[33] that from this it follows that common good constitutionalists seek to maximize opportunities for judicial interference, given their basic textualism militating against this. It does not follow that because one adopts a substantive reading of the Constitution that he aims to remove judicial restraint. Though Vermeule uses some of Ronald Dworkin’s arguments, to conclude a sympathy for judicial activism is not at all a fair inference because the final object of common good theorizing substantively differs from that of Dworkin, both in the end sought for government and the specific classical tools desired to be revived. Nor does the classical legal tradition require Dworkinian interpretation to stand alone as theoretically sound and internally coherent system, even if Dworkin is useful to articulate some points. One might ask if Sir Edward Coke, Chief Justice Marshall, or Justice Harlan were akin to modern progressive jurists based on the sort of accusations levelled against contemporary classical constitutionalists and in both instances the charge is equally ridiculous.
The public meaning originalist assumes that the original sense in which a text was received at the time of the Framing is the legal sense in which the text ought to be interpreted for all time, ascribing a legal status to the Framing generation’s interpretations which is exceedingly remarkable. How should we treat McCulloch v. Maryland, a precedent ill at ease with such a methodology? That is the primary early authority for an expansive interpretation of the Constitution, a mode of interpretation allowing the ‘majestic generalities’ of the text to have continuing relevance to the present day. If mainstream originalists were methodologically consistent, the Constitution would be left standing but only as an interesting historical artefact, like the Code of Hammurabi – intriguing, edifying, even, but useful? Certainly not. And that would be a grave failure, for the framing of a constitution is an exercise of practical political wisdom, and its interpretation has a particular share in that wisdom in order that the State might serve many generations. This is not simply on the authority of McCulloch, though it did say that, but of all generations in our tradition well into antiquity, represented by no mean figures like Cicero and Aristotle, who held that to frame a State is an exercise of practical political wisdom that it might endure indefinitely to secure the common good for a particular, stable community.[34]
By adopting a strange historicizing method, the legal interpreter alienates his art from service to the common good. The Constitution is not dead, and it is, in a sense, a living instrument though not in the sense of the progressives. It has a given nature, and it is adaptable to the times while retaining a fixed core of meaning; just as a living person remains the same person across the crises that happen in his life, even more so the “Constitution intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs”.[35] This is not a Darwinian evolutionary adaptation which changes the very nature and essence of the text, but to adapt in the sense of an instrument suited and proportionate to speak to circumstances unforeseen by the legislator, a sense indicated by Samuel Johnson in his Dictionary of the English Language.That the Constitution would speak to unforeseen circumstances was a thing itself foreseen by the Framers, who were not ignorant of the classical law. So, it is not vague progressive values, contrary even to the nature of law, which are to be read into the text of the Constitution. Rather it is the discipline of classical legal interpretation which is to be applied to the Constitution, so that the text might receive its full sense. It receives this sense in the context of the jurisprudence, principles, maxims, and inheritance of American law, the ius commune, and the broad principles of morality presumed by the Constitution in its very nature as a legal instrument and not simply some historical object.
Justice Barrett would only go so far as saying that the law, in the process of its formulation, is aimed at promoting the common good. That is, that law is subjectively aimed at promoting the common good by the ones who formulate it because they have, in her words, a “duty” to serve the common good. However, according to her, the judicial power is both not “well unsuited” to pursue the same duty and for it to do so would undermine the system of the Constitution as interpreting the text at a higher level of generality “gives all of the authority to the judges”. This prejudices democracy by imposing on the population an opinion about “what they should agree to rather than what they already agreed to in the Constitution”. Her comments about democracy were made by way of criticizing progressives but given that Justice Barrett treats classical constitutionalists as methodologically akin to progressives, her criticism is intelligible in the context ofcommon good constitutionalism.
Again, this is the same equivocation between the different forms of judgment involved: a discretionary prudential decision is not the same as a legal decision because both involve different questions when reasoning. Clearly the judge qua judge is not well suited to make discretionary decisions, because his job is to render judgment as to the meaning and effect of an already enacted determination to a given set of facts. That in doing this the judge is well suited to using the instruments of law devised for the very purpose of serving the common good in the performance of the judicial function is an entirely different matter. It is perplexing to consider how a judge might elude considering the common good if that is what the legislator is presumed to seek in his work. Simply relying on the bare attempt to reconstruct the meaning of a text when it was promulgated belies the very object of law, which is to speak to certain objects and circumstances that they may be ordered aright. It is not enough to consider speculatively how the law spoke at a certain time, but how it is speaking now to our time in view of the ordering of the whole political community to the common good. In this, the classical lawyer does not use “free-floating” notions, but a disciplined mode of textual interpretation in consonance with the nature of the law itself and the established practices of his local system. Whether Justice Barrett is correct in her criticism of progressives is immaterial to her certain incorrectness about what a common good constitutionalist is trying to do. She simply misconceives the nature of the judicial power in seeking to exclude common good considerations from the scope of judicial inquiry.
I said earlier that Justice Barrett underappreciates the nature of law as a straight measure for action as a particularization of the ruler’s reasonable will. The discussion in this section might clarify that statement further. In that she says that the legislative and executive branches are charged with making common good determinations and concretizing them in law, she judges correctly. However, it is the judicial branch which must make a specific application of such a political determination. In that the judiciary must consider how and in what way the other branches intended to serve the common good, Justice Barrett errs in eluding the common good as such by shielding herself behind a positivist textualism. In this assessment of the common good, the judiciary has tools to aid it, tools peculiar to its constitutional function which neither of the other branches are well suited to use. It has these tools and may choose to use them or to neglect them. Yet it cannot evade making common good judgments: it can either make good ones, by recognizing that it already is doing so in some measure, or it can make bad ones by claiming it is entirely neutral to common good considerations. It is a malformed judiciary in breach of comity which thwarts the ability of the other branches, possessed of force and will, to serve the common good by refusing to see its role in facilitating its pursuit, in consciously rendering judgment ordered to that end.
Conclusion
Justice Barrett seems to think that common good constitutionalism is a seductive substitute for real legal work. On the contrary, the same questioning of motives could be made of her form of originalism, not because it is moving, but because there is so much institutional support behind it. In neither case is the accusation particularly helpful to take forward the debate in good faith. To have a good faith debate, however, it is necessary that both interlocuters seek to understand one another’s position. Whatever may be said of the understanding others possess of common good constitutionalism, it is evident that Justice Barrett has only a vague notion of what the theory means beyond the simple name which has been given to it in recent years. There is, however, a real seductive quality to her originalist and textualist method because it is somewhat simplistic. At the risk of being reductive, when using it you just determine the originally received public meaning of a text so far as possible and apply it to the case or controversy at hand. Forget about reason, the nature of law, the context of principles and the ius commune: just cut to history and let the heavens fall. Stare decisis has some function, though difficult to square with originalism if the original sense is indeed dispositive, depending on what sort of originalism one subscribes to. In this sense, the classical way of approaching law is much more disciplined and coherent. Indeed, it is the mode of interpretation truly consistent with the nature of the judiciary as servants of the law as both text and principle.
[1] You can read a transcript of the relevant comments from the conversation here: https://legalmicroscope.blog/wp-content/uploads/2026/06/Justice-Barrett-Bishop-Barron-Transcript.pdf It is an automatically generated transcript with some corrections; you can listen to the original conversation at this link for yourself: https://www.wofdigital.org/bishop-barron-presents/videos/bishop-barron-presents-justice-amy-coney-barrett
[2] In her confirmation hearings, Justice Barrett expressly aligned herself with Public Meaning Originalism when she said: “I interpret the Constitution as a law, that I interpret its text as text, and I understand it to have the meaning that it had at the time people ratified it.” (U.S. Congress, Senate, Committee on the Judiciary, 116th Congress, Confirmation Hearing on the Nomination of Hon. Amy Coney Barrett to be an Associate Justice of the Supreme Court of the United States, 2nd Session, October 12-15 2020, 77 (hereinafter, ‘Confirmation Hearing’))
[3] Ibid.
[4] 7 Co. Rep. 6b, 7a (1587); cf. on this see how Adrian Vermeule places Coke’s maxim in the context of American jurisprudence, particularly that of Justice Scalia, in ‘Justice Barrett’s Dogma’ (The New Digest, 06 October 2025)
[5] 163 U.S. 537 (1896)
[6] Ibid 558
[7] Ibid 558-559
[8] 12 Co. Rep. 64 (1607)
[9] ibid
[10] Adrian Vermeule, Common Good Constitutionalism (Polity, 2022) 35-36
[11] Aristotle, Rhetoric Book I.1 in St. Thomas Aquinas, Summa Theologica Ia-IIæ, q. 95, a. 1, ad. 2 (trans. Fathers of the English Dominican Province)
[12] 156 U.S. 432 (1895); see Adrian Vermeule, ‘Justice Barrett’s Dogma’ (The New Digest, 06 October 2025)
[13] cf. Lord Sales, ‘Statutory Interpretation and Practice’ (UK Supreme Court, 20 March 2025) <https://supremecourt.uk/uploads/speech_lord_sales_200325_3e4c4980d6.pdf> [https://perma.cc/CUW9-258T] 2-3
[14] Ibid 2
[15] W. Va. Univ. Hosps. v. Casey, 499 U.S. 83 (1991) 101; Adrian Vermeule, ‘Justice Scalia and Reasonable Interpretation’ (The New Digest, April 08 2026)
[16] ibid
[17] Cf. Patrick J. Smith, ‘Sir John Fortescue and the Ius Commune’, (Ius & Iustitium, 07 October 2020)
[18] cf. Ralph McInerny, Ethica Thomistica (Catholic University of America Press, 1st edn. 1983, rev. edn., 1997)
[19] This sentence is evidently a paraphrase on several maxims like ‘ratio legis est anima legis’, and ‘cessante ratione legis cessat ipsa lex’ but also the maxim which counsels literalism, ‘verba legis non est recedendum’, this last being tempered by the former two. ‘Verba legis sine ratione vana sunt’ would be my paraphrase in Latin.
[20] So, she says: “You know, I think legislators have, you know, the duty to pursue the common good. I mean, within the confines of the constitution and respect for religious freedom, et cetera. But the idea that the court is well suited or that any court in the country is well suited to that task is a different thing entirely. I mean, the constitution distributes authority in a particular way.
The authority that I have is circumscribed. And you know, it’s one thing to say if you like the composition of the current court, ‘I really want to trust them to make decisions to pursue the common good.’ But back to that, if you cut down all the laws … [A reference to the famous quote attributed to Sir Thomas More in Robert Bolt’s A Man for All Seasons] You know, you have to imagine, ‘what if I didn’t like the composition of the court I was in front of, the court that was making these decisions and they view the common good quite differently than I do.’ That’s the reason why we have a document like the Constitution because it’s a point of consensus and common ground.
And if we start veering away from that and reading into it our own individual ideas of the common good, it’s going to go nowhere good fast.”
[21] Bostock v. Clayton County, 590 U.S. 644 (2020)
[22] Adrian Vermeule, ‘A Mini-Crisis of Originalism’ (The New Digest, 29 August 2024)
[23] Confirmation Hearing, supra n. 2, 156
[24] See, for example, his concurring opinion in Gamble v. United States, No. 17-646, 587 U.S. 678 (2019): “In my view if the Court encounters a decision that is demonstrably erroneous – i.e., one that is not a permissible interpretation of the text – the Court should correct the error, regardless of whether other factors support overruling the precedent.”
cf. Adrian Vermeule, ‘Justice Barrett’s Dogma’ (The New Digest, 06 October 2026)
[25] Justice Antonin Scalia quoted in Nina Totenberg, ‘Justice Scalia, the Great Dissenter, Opens Up’ (NPR, 28 April 2008); cf. Amy Coney Barrett, ‘Originalism and Stare Decisis’ [2017] 92 Notre Dame Law Review 1921, 1931
[26] Richard Ekins, ‘Between Authority and Usurpation? Common Good and Constitutional Government’ [2024] 69 The American Journal of Jurisprudence 45
[27] Adrian Vermeule, ‘Is the Court “Political”?’ (The New Digest, 11 May 2026)
[28] Adrian Vermeule, ‘Beyond Originalism’ (The Atlantic, 31 March 2020)
[29] Adrian Vermeule, Common Good Constitutionalism (Polity, 2022): “How, if at all, are these principles to be grounded in the constitutional text and in conventional legal sources? The sweeping generalities and famous ambiguities of our Constitution afford ample space for substantive moral readings that promote peace, justice, abundance, health, and safety, by means of just authority, solidarity, and subsidiarity. These highly general and abstract clauses have to be given some content or other, and it is – by their terms – impossible to do so without considering principles of political morality, which may of course include principles of role morality that allocate lawmaking authority among institutions”.
[30] McCulloch v. Maryland, 17 U.S. 316 (1819) 407
[31] cf. Plessey v. Ferguson, 163 U.S. 537 (1896) 558 (Harlan J., dissenting)
[32] 5 U.S. 137 (1803)
[33] cf. Matthew T. Still, ‘St. Thomas Confounds Vermeule: A Thomistic Critique of Professor Vermeule’s Conservative Anti-Originalism’ 74 Alabama Law Review 1135, 1145-1146
[34] I’m synthesizing the points made in Cicero and Aristotle into a single coherent statement: see Cicero, De Re Publica, Book III.33; Aristotle, Nicomachean Ethics Book VI.8 and Politics Book III.4.
[35] McCulloch v. Maryland, supra n. 30, at 415, emphasis added
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