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By ED WHELANApril 6, 2022 7:37 AMEleventh Circuit chief judge William Pryor has just published a critique of law professor Adrian Vermeule’s “common good constitutionalism,” an approach to constitutional interpretation that Vermeule has set forth both in some articles and in a recent book with that title. I can’t succinctly summarize Pryor’s critique, so I will instead offer some excerpts:I want … to address a kind of results-oriented jurisprudence that is indistinguishable in everything but name from Justice Brennan’s living constitutionalism: Harvard Law Professor Adrian Vermeule’s so-called common-good constitutionalism—a variant of what I call living common goodism. Vermeule’s approach, in his words, “take[s] as its starting point substantive moral principles that conduce to the common good, principles that [judges] . . . should read into the majestic generalities and ambiguities of the written Constitution.” [Pryor’s italics.] Replace “common good” with “human dignity” and Vermeule’s living common goodism sounds a lot like Brennan’s living constitutionalism. Indeed, the difference between Brennan’s living constitutionalism and Vermeule’s living common goodism consists mainly in their differing substantive moral beliefs; in practice, the methodologies are the same…. The Constitution does not give judges the power to “read into” the text of the Constitution “substantive moral principles that conduce to the common good.” And fashioning that kind of jurisprudence would conflict with natural law. As Professor Robert George has explained, when courts exceed their jurisdiction and usurp “legislative authority,” whether for good or bad causes, “they violate the rule of law by seizing power authoritatively allocated by the framers and ratifiers of the Constitution to other branches of government.”…A major theme of Vermeule’s recent popular-level polemic defending living common goodism is that it supposedly prevailed at the Founding. He contends that living common goodism “is the original understanding” of the Constitution. In his revisionist historical account, “the classical legal tradition structured and suffused our law” “[r]ight from the beginning, long before the Constitution of 1789.” And living common goodism “has since been displaced . . . by originalism,” which he labels as a creature of the late 20th century. Rubbish!…Vermeule’s argument for that historical revisionism does not withstand scrutiny. He argues that three opinions—the first Justice Harlan’s dissent in Lochner v. New York, the decision of the Supreme Court in United States v. Curtiss-Wright, and the decision of a New York court in Riggs v. Palmer— “illustrate how deeply the classical legal tradition has always infused our law.” Setting aside whether these decisions support Vermeule’s methodology, it strains credulity to suppose that a dissenting opinion from 1905, a Supreme Court decision from 1936, and a state-court decision from 1889 could establish that living common goodism is deeply rooted in the American tradition: that it “structured and suffused our law” “[r]ight from the beginning, long before the Constitution of 1789 was written.” Vermeule’s argument is about as persuasive as using Roe v. Wade as evidence that living constitutionalism is deeply rooted in our legal tradition. Pryor goes on to argue that both Harlan’s dissent in Lochner and the Court’s ruling in Curtiss-Wright were originalist and that “most American courts … rejected Riggs in favor of the textualist approach [Vermuele] says was invented after the Second World War. He argues more broadly that Vermeule’s revisionism “flouts a mountain of historical evidence” dating back to the Founding era. This Day in Liberal Judicial Activism—April 11By ED WHELANApril 11, 2022 8:00 AM2018—“Progressive fury” (as CNN puts it) is unleashed on federal district nominee Wendy Vitter for declining to opine at her confirmation hearing whether she believes that Brown v. Board of Education was correctly decided. Malicious charges spread that Vitter supports racial segregation. Never mind that, like many other nominees, Vitter took the position that it was improper for her to comment on the rightness or wrongness of any Supreme Court ruling. Never mind that she committed to apply all existing precedents. Never mind that she testified that racial segregation is immoral. Never mind that no one identified anything in her life or career to suggest that she is racially biased. Never mind that she has earned the support of Democrats like New Orleans mayor Mitch Landrieu (who, among other things, called for the removal of city monuments honoring leaders of the Confederacy). What many on the Left really object to—or so it would seem from the questions posed at the hearing by Senate Democrats—is that Vitter is openly pro-life.  2018—Federal district judge Manuel L. Real rules (in City of Los Angeles v. Sessions) that the Department of Justice, in administering a federal program to give grants to local governments to hire officers, cannot favor applicants who commit to address illegal immigration, and he enters a nationwide injunction against DOJ. Some fifteen months later, a Ninth Circuit panel will reverse Real’s ruling. 2019—Accepting the Thomas Jefferson Foundation Medal in Law from his alma mater, the University of Virginia law school, federal district judge Carlton W. Reeves addresses what he calls the three “great assaults” on the federal judiciary. Reeves powerfully describes the first two assaults, in the Reconstruction Era and in the resistance to Brown v. Board of Education. But he then descends into rank partisanship as he decries the “third great assault on our judiciary,” which consists above all of tweets and comments by Donald Trump slamming various judges and rulings. There is plenty of room to deplore Trump’s comments without seeing in them anything remotely like the return of the Klan.  This Day in Liberal Judicial Activism—April 10By ED WHELANApril 10, 2022 8:00 AM2017—Livid that Senate Democrats’ historically idiotic filibuster of Neil Gorsuch’s nomination has led Republicans to abolish the 60-vote cloture threshold for Supreme Court nominations, Democratic senator Ed Markey vows that Senate Democrats will restore the filibuster for Supreme Court nominations as soon as they regain control of the Senate. But after Senate Democrats do take control of the Senate in 2021, neither Markey nor Senate Democrats will make any such effort. Instead, Markey will launch an effort to pack the Supreme Court. This Day in Liberal Judicial Activism—April 9By ED WHELANApril 9, 2022 8:00 AM2001—A Ninth Circuit panel, in an opinion by Stephen Reinhardt, rules in Doe v. Otte that application of Alaska’s Sex Offender Registration Act (commonly termed a “Megan’s Law”) to those whose crimes were committed before enactment of the Act violates the constitutional bar on ex post facto punishments. The Act requires sex offenders in the state to register with law-enforcement authorities, and it provides that a central registry of information about offenders will be made public. The Ninth Circuit concludes that the Act imposes criminal punishment and therefore may not be applied retroactively.On review (styled Smith v. Doe), the Supreme Court in March 2003 reverses the Ninth Circuit by a 6 to 3 vote (with Stevens, Ginsburg, and Breyer in dissent). The Act, the Court determines, creates a regulatory scheme that is civil and nonpunitive. In his 39th and final argument before the Supreme Court, the attorney for Alaska, a fellow by the name of John G. Roberts, Jr., marks his last victory as an advocate.  2018—The Ninth Circuit issues a 6-5 en banc ruling in Rizo v. Yovino, with Judge Stephen Reinhardt listed as the author of the six-judge majority holding that an employer’s consideration of prior pay is impermissible under the Equal Pay Act. Never mind that Reinhardt died eleven days earlier and that his putative vote was essential to the outcome. In February 2019, a unanimous Supreme Court will summarily reverse the Ninth Circuit on the ground that Reinhardt could not take part in the case after his death: “Federal judges are appointed for life, not for eternity.” 2018—Taking what it calls “an incremental step in the constitutional discourse over the unique protections that the Eighth Amendment affords to juvenile homicide offenders,” a Third Circuit panel rules (in United States v. Grant) that a man sentenced to a term of 65 years without parole for brutal crimes (including murder) that he committed when he was 16 years old has a presumptive right to be released from prison before he turns 65.  This Day in Liberal Judicial Activism—April 8By ED WHELANApril 8, 2022 8:00 AM2005—A split Ninth Circuit panel, in an opinion by notorious activist judge Stephen Reinhardt, rules in a habeas case (Musladin v. Lamarque) that under clearly established Supreme Court law a defendant on trial for murder was deprived of his right to a fair trial by an impartial jury when the trial judge permitted family members of the victim (or, as Reinhardt insists on referring to him in quotes, the “victim”) to wear buttons bearing the deceased’s photograph. (The panel will later substitute in a slightly different version of its opinion.)  In 2006, a mere two months after oral argument, the Supreme Court (in Carey v. Musladin) will unanimously reverse the Ninth Circuit. 2015—Shirley, you can’t be serious! The day after Wisconsin voters amend the state constitution to alter the method for determining who is chief justice of the Wisconsin supreme court, Wisconsin chief justice Shirley S. Abrahamson files a federal lawsuit contending that the amendment violates her constitutional rights. The legal reasoning in Abrahamson’s complaint reflects just the sort of activist nonsense that Abrahamson has been notorious for during her decades on the court.Less than three months later, the federal judge handling the case—an Obama appointee, no less—will grant summary judgment against Abrahamson.   This Day in Liberal Judicial Activism—April 7By ED WHELANApril 7, 2022 8:00 AM1969—Justice Thurgood Marshall’s majority opinion in Stanley v. Georgia declares that the First Amendment forbids criminalizing the possession of concededly obscene material. Marshall blithely distinguishes away the Court’s previous categorical statements that obscenity is not protected by the First Amendment. Stanley, Marshall grandiosely proclaims, is asserting “the right to satisfy his intellectual and emotional needs in the privacy of his own home.” Yep, that carefully captures what viewing obscenity is all about. (Three justices, including Brennan, decline to join Marshall’s opinion and instead separately find a Fourth Amendment basis for vacating Stanley’s conviction.) 1969—In majority opinions by Justice Brennan in Kirkpatrick v. Preisler and Wells v. Rockefeller, the Supreme Court, building on its 1964 ruling in Wesberry v. Sanders (see This Day for February 17), rules that the states, in crafting their congressional redistricting plans, must aim to “achieve precise mathematical equality” in the populations of congressional districts. It rejects the argument that there is any “fixed numerical or percentage population variance small enough to be considered de minimis.”  In dissent, Justice Harlan laments that the Court “transforms a political slogan [‘one man, one vote’] into a constitutional absolute”: Strait indeed is the path of the righteous legislator. Slide rule in hand, he must avoid all thought of county lines, local traditions, politics, history, and economics, so as to achieve the magic formula: one man, one vote…. [I]nsistence on mathematical perfection does not make sense even on its own terms. Census figures themselves are inexact; our mobile population rapidly renders them obsolete; large groups of ineligible voters are unevenly distributed throughout the State.  Harlan also presciently observes that “the Court’s exclusive concentration upon arithmetic blinds it to the realities of the political process…. The fact of the matter is that the rule of absolute equality is perfectly compatible with ‘gerrymandering’ of the worst sort.”  1994—In a divided Ninth Circuit panel decision in Hartooni v. INS, Judge Harry Pregerson invents a rule that a reviewing court must treat an asylum applicant’s testimony as credible and true unless the immigration judge made “an explicit finding that any specific statement … was not credible.”  Pregerson’s invention will taint Ninth Circuit immigration rules for nearly three decades, until the Supreme Court unanimously rules in 2021 (in Garland v. Dai) that the Ninth Circuit’s “special rule” is an “embellishment” that “mistakenly flips [the proper] standard on its head.” This Day in Liberal Judicial Activism—April 6By ED WHELANApril 6, 2022 8:00 AM1994—Justice Harry Blackmun announces his impending retirement after 24 years on the Court. His majority opinion in Roe v. Wade (1973) is rivaled only by Dred Scott as the worst opinion in Supreme Court history.  As one of Blackmun’s former clerks, Edward Lazarus (who described himself as “someone utterly committed to the right to choose [abortion]” and as “someone who loved Roe’s author like a grandfather”), aptly put it, “As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible.” Also from Lazarus: “Justice Blackmun’s opinion provides essentially no reasoning in support of its holding. And in the [decades] since Roe’s announcement, no one has produced a convincing defense of Roe on its own terms.” (My June 2005 Senate testimony (in parts 1 and 2) presents additional criticisms, including from other supporters of legal abortion, and explains why abortion policy needs to be restored to its rightful place in the democratic political processes.)  2016—In an Atlantic essay, lefty law professor Erwin Chemerinsky salivates over the prospect that President Obama’s hoped-for appointment of Merrick Garland to the Supreme Court would create a liberal majority that “likely would overrule” the Court’s landmark Second Amendment ruling in D.C. v. Heller and that would move the Court’s decisions dramatically leftward on a broad range of issues, including preventing any regulation of abortion, entrenching racial quotas, eliminating First Amendment protections against campaign-finance restrictions, abolishing the death penalty, and extravagantly overreading the Establishment Clause (farewell, school choice, and goodbye, In God We Trust). And all of that is before Chemerinsky even begins briefly sketching his “dream” agenda. Alas for Chemerinsky’s dreams, Senate Republicans will succeed in blocking action on Garland’s nomination, and Donald Trump will defeat Hillary Clinton in the presidential election seven months later.   M. Edward Whelan III
Distinguished Senior Fellow andAntonin Scalia Chair in Constitutional Studies
Ethics and Public Policy Center
1730 M Street N.W., Suite 910
Washington, D.C. 20036

About abyssum

I am a retired Roman Catholic Bishop, Bishop Emeritus of Corpus Christi, Texas
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