no natural immunity against infection from without by whatever theory of the good judges and other legal actors interpolate into the law. Unsurprisingly, then, the illusory positivism of the conservative legal movement has largely been hollowed out and taken over by a substantively libertarian constitutional vision – an extremely well-funded libertarian vision. Originalist-libertarians purport to be horrified by purposive rule for the common good even as they defend the role of common-law judges in defining and protecting property rights. They evince hostility to the administrative state, except for the parts of the administrative state that promote the smooth functioning of financial services and the broader economy, and angrily condemn any departures from the putative original understanding, except in areas such as political free speech rights for corporations, gun rights, and “takings” of property rights, in which the law propounded by conservative judges is either expressly or arguably non-originalist. On social matters, originalist judges have written expressly originalist opinions, such as the decision in Bostock v. Clayton County,33 reaching results that almost no one alive at the time of the law’s enactment would conceivably have thought desirable or even defensible. It is a strange originalism indeed that would be unanimously voted down by the enacting generation.
The larger significance of all this is methodological: both progressivism and originalism (in the version I focus on here) are positivist approaches, albeit in somewhat different ways:
[T]he terms of many debates in American jurisprudence … generally oscillate between two mostly positivistic poles: progressive moralism and conservative originalism. In the mainstream one can only choose between the revolutionary positivism of the progressive, who denies substantively the normative claims of the natural law in the name of the liberation of the individual will, and the academic, genteel positivism of the originalist, who denies methodologically the normative claims of the natural law in the name of preserving the will of semi-mythical lawgivers. The U.S. Supreme Court’s decision in Bostock v. Clayton County has revealed a late fruit of this brambled garden: progressive originalism, the method of the conservative, now perfected at the service of the progressive’s ends.34
Later I will illustrate and explain the convergence that produces an originalism indistinguishable from progressive living constitutionalism. For now, the key methodological point is just that originalism and progressivism both stand on the same side of a gulf that separates them from the classical legal tradition.
Vices and Virtues
None of this means that progressivism and originalism are wholly valueless. Just as vices may sometimes be deformations or exaggerations of virtues, so too progressivism and originalism are themselves both deformations of legitimate insights and legitimate parts of the overall scheme of classical legalism. Progressivism exaggerates the entirely legitimate idea that doctrine may develop over time, not because principles of constitutionalism change, but because circumstances do, so that the application of permanent principles in new circumstances may require a development of doctrine. Progressivism goes wrong by extending this idea to the principles themselves, proposing to update and even discard them in the service of the endless advance of human liberation. In what follows, I will distinguish legitimate development from the vices of legal progressivism.
So too, originalism rests on the entirely legitimate insight that the public authority may establish rules of municipal positive law, the ius civile, that vary from place to place and time to time, and that interpreters should respect the lawmaker’s aims and choices when they implement a reasoned determination of the civil law for the common good. The problem arises when originalism attempts to liberate itself from the larger framework of the law overall, which includes both general principles of legal justice (ius) and particular written laws (lex), and which interprets the ius civile to harmonize with the broader background principles and commitments of the legal system, including the natural law (ius naturale) and the law of nations (ius gentium).
Properly speaking, the classical approach to law is not an opponent or alternative to originalism or textualism. Rather it includes its own properly chastened versions of those ideas, because it includes the ius civile as part of a larger scheme of law, and because it respects the authority that determines the content of the positive law. Yet it also limits and orders that law, and the duties of its interpreters, by binding it to the common good. The positive civil law is a good servant, but a bad master. The classical conception of ius civile, in other words, can be summed up as positive law without jurisprudential positivism.
Shibboleths Dispelled
Beyond my positive and negative claims, a final aim of this book is to dispel some commonly heard, but erroneous, assumptions or shibboleths about common good constitutionalism.35
It is entirely question-begging to say that interpretation in the classical tradition “departs from the meaning of the text” or “substitutes morality for law.” Rather the classical tradition, in appropriate cases, looks to general principles of law and the ius naturale precisely in order to understand the meaning of the text, as a mode of interpretation. It claims that while there are powerful arguments of political morality to respect lex as law, it is also true that lex, precisely because it is law, must be interpreted in light of ius. The classical tradition thus claims that principles of political morality are themselves already part of the law and internal to it.
Relatedly, the classical tradition does not substitute “preferences” for law; it claims that there are objective principles of legal justice accessible to the reason, that it is entirely possible to “find” rather than “make” law.36 That claim may or may not be correct, but it is utterly tendentious to take it for an entirely different claim which no one makes, that interpreters are licensed to enforce their own arbitrary “preferences.” Even purportedly positivist arguments are informed by some conception or other of the common good, and it is entirely legitimate to examine, in the light of reason, whether any given conception of the common good is a plausible one.
The classical tradition does not, at least not primarily, see the point of natural law as overriding the positive civil law (a view created by excessive focus on the natural rights strand of the classical tradition). Rather it mainly draws upon the natural law both to construe the civil law and to justify action for the common good on the part of the political authority.
The classical tradition, in itself, does not license judges in particular to rule as they see fit for the common good. It takes no a priori position on questions like the appropriate scope of judicial review, the exact balance between political and legal constitutionalism, or the importance of “democracy” (somehow understood) vis-à-vis judicial review. Many different institutional allocations of decision-making authority can be ordered to the common good and be consistent with it. The liberal mind finds it hard to process that the whole focus of the theory is not on advocating for particular forms of institutional technology or particular institutional arrangements, but instead on the purposes or ends to which law is aimed. A range of institutional technologies can in principle be ordered to the common good. Whether they can be so in practice is a function of particular conditions in particular constitutional orders, and thus a matter for prudential arrangement, not a matter of conceptual necessity.In our own system, judges are generally, or presumptively, bound to respect reasonable determinations in the public interest by the legislature and the executive, perhaps under legislative delegation. Again, this is not a necessary claim about constitutionalism; it is an interpretive claim about the American constitutional order. And it also happens to hold true for other constitutional orders, such as the system of European human rights law, one of whose fundamental principles is the “margin of appreciation”37 – very roughly, an appropriate margin of discretion for member states and public authorities to decide how best to implement legal respect for human rights.
It is irrelevant that there was, is, and will be disagreement between