Introduction

BY ILYA SHAPIRO, Manhattan Institute

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Originalism is good for the common good because the Constitution is good for the common good. This aphorism is all you need to know to understand why the so-called debate between originalism and “common good constitutionalism” is phony. If your goal is to create an institutional framework that maximizes human flourishing, to facilitate structures that lead to a healthy society, and to enable the development of virtue under a system of ordered liberty, I have good news: we have already done so.

Now, it is certainly true that constitutional interpretation has been woefully deficient, allowing progressive theories to go unchallenged for decades until the advent, in fits and starts, of originalism (and textualism for statutory interpretation). And originalism itself has, until very recently, lacked a critical judicial mass. So of course we hear calls to abandon “value-neutral” process rules and join the Left in placing result-oriented thumbs on scales. But such siren songs fall flat, particularly as the conservative legal movement reaches its pinnacle and continues to place its vanguard in the highest offices and achieve landmark rulings in areas of law ranging from abortion and affirmative action to the scope of administrative power.

Beyond such practical considerations, originalism is the best philosophical game in town because it precludes judges from imposing their own views on the Constitution. “Common good originalism,” on the other hand, would invite judges to do just that, and it would approve theories of social justice, “active liberty,” and the like. This legal equivalent to “common good conservatism” thus suffers from the same flaw: without neutral interpretive rules, the progressive devil turns around on you.

As you consider the following arguments, remember that originalism is apt for specific kinds of the common good: economic growth, manufacturing, and industrial development.

Many constitutional clauses have an explicit or implicit relationship to economic growth and development, and an originalist interpretation of these clauses is beneficial for the overall economy— especially industrial production and manufacturing. This is especially true for the Commerce Clause, which describes Congress’s power to regulate interstate commerce, and thus to prevent internal barriers to trade of the sort that led to the breakdown of the Articles of Confederation. Most importantly, though, originalism helps the pocketbook at the individual and family levels as much as for large corporations and the nation as a whole, by generating stability and predictability in financial structures. Originalism is synonymous with the rule of law, which is essential to economic development and industrial strength.

The rule of law exists when all persons and institutions— including the government itself—are accountable to laws rather than personal authority. These laws must be publicly enacted by a representative body; enforced equally by authorities who themselves follow the laws; and reviewed, interpreted, and applied by an independent judiciary. Government officials undermine the rule of law when they go beyond their constitutional powers, whether by creating unauthorized rules (e.g., OSHA’s vaccine mandate or the EPA’s Clean Power Plan) or by twisting the Constitution to allow actions it was plainly meant to prevent (e.g., the New Deal, Obamacare’s individual mandate).

People and firms alike need the rules of the game to be clear and free from arbitrary enforcement if they are to plan their affairs, make long-term investments, and accept the risks of delayed gratification. The formula is simple: originalist jurisprudence promotes economic growth and industrial strength by reducing the arbitrary power of the regulatory state. When judges apply the law as written rather than bending over backward to approve the excesses of the political branches and unaccountable bureaucracy, they promote investment- backed expectations. Changes in the law then require sustained democratic majorities following the meta law through transparent processes. But when judges interpret the law liberally, ad hoc regulatory inflation leads to rule- of-law devaluation, which introduces economic uncertainty and harm.

But enough on my view of this “debate.” What follows is one the most effective takedowns of common good constitutionalism, and by a distinguished jurist at that, Chief Judge William J. Pryor of the U.S. Court of Appeals for the Eleventh Circuit. Take it from him that “living common goodism,” as he coined it, is no good.

Chief Judge Pryor appropriately quotes Princeton professor Robert P. George in decrying judicial usurpation of legislative authority, “ whether for good or bad causes.” Pryor first laid out his critique of common good constitutionalism in his Joseph Story Lecture at the Heritage Foundation in October 2021. I was honored to attend that lecture, and we are all fortunate to have the exegesis that follows.