On Common Good Constitutionalism: Vermeule Response to Barrett

In a recent NRO interview, Justice Amy Coney Barrett said she did not “like this common good constitutionalism movement,” suggesting it was too “results-oriented.”

At the New Digest, Professor Adrian Vermeule, author of Common Good Constitutionalism, has responded to Justice Barrett’s comments. Here is a taste:

here is a serious ambiguity in Justice Barrett’s critique. There is a sense of “result-oriented” that Justice Barrett would be quite right to criticize; in this sense, the judge must avoid result-orientation at all costs. This sense is captured in the federal judicial oath mandated by 28 U.SC. 453, which requires the judge to swear to “administer justice without respect to persons, and do equal right to the poor and to the rich.” The judge must show no partiality whatsoever as between the parties to the case.

But I’m not at all sure that’s what Justice Barrett means by “result-oriented.” If, as I suspect, she is drawing upon a different sense of “result-oriented” widespread in originalist writing, she means something quite different: judges interpreting the law must never take into account the consequences for the common good or public interest of the various possible interpretations. Fiat sensus primigenius, ruat caelum – let the original meaning be done, though the heavens fall.

Common good constitutionalism does indeed hold that judges interpreting the law should sometimes take into account the consequences of their interpretations for the public interest; in that sense, although only in that sense, Barrett’s charge of “result-orientation” is perfectly true. The difference between Barrett and the classical lawyer, however, is that the classical lawyer does not think it is bad for judges to be “result-oriented” in the second sense. Indeed I believe that “result-orientation” in the second sense is so firmly grounded in our legal theory and practice, from the very beginning of our republic, that any good-faith originalist ought to recognize a kind of bounded legal consequentialism as one component of her approach to adjudication.

The full essay is available here.

Justice Barrett is not the first jurist to critique common good constitutionalism. I noted Judge Bill Pryor’s critique, as well as Prof. Vermeule’s response (with Conor Casey).