Many Americans know precious little about our system of
government; the judicial branch is especially mysterious.
In a recent article
published in The Atlantic, Harvard Law School professor Adrian Vermeule deepens
that confusion by rejecting how America’s Founders designed the judiciary to
follow the Constitution in favor of judges’ power to control the Constitution.
The American people use the Constitution to set rules for
government, including giving separate jobs to the three branches. Students
learn in civics class that the legislative branch makes the law, the executive
branch enforces the law, and the judicial branch interprets the law.
Each branch is supposed to follow the Constitution’s rules
and stick to its assigned job.
That includes judges. From the beginning, the question has
been how much leeway judges should have when they interpret written law such as
the Constitution or statutes.
You and I interpret written things all the time and, when we
do, we try to figure out what the author meant by what the author wrote. That
way, it means the same thing to everyone.
The Founders put the Constitution in writing and designed
the judiciary to interpret it the same way. That way, judges can’t just make it
up as they go along. Today, this approach often is called “originalism” because
the Constitution’s original meaning is the one that counts, whether judges like
it or not.
The first three words of the Constitution, after all, are
“we the people.” We make the rules for government and government, including the
judiciary, is supposed to follow those rules. If the Constitution meant
whatever judges wanted it to mean, judges would be able to set their own rules.
They would control the Constitution, not vice versa.
That’s exactly what Vermeule’s new system–which I critique in more detail in a Legal Memorandum–requires so that government would become much more powerful. He thinks that government should help us “form more authentic desires for the individual and common good, better habits, and beliefs that better track and promote communal well-being.”
Oh, and the Harvard law professor says that you and I, whom
he calls “subjects,” eventually will come to “thank the ruler” for it.
In his article, Vermeule describes all sorts of things he
wants this uber-powerful government to do for us: protect us from pandemics,
climate change, corporations, the free market, corporate exploitation of the
environment, and employers’ exploitation of workers as “atomized individuals.”
Wait, what? Is that what government is supposed to do? The
way America’s Founders designed it, government doesn’t exist to manipulate our
beliefs, desires, or habits. The Declaration of Independence says that
government exists to secure our unalienable rights such as life, liberty, and
the pursuit of happiness.
No wonder Vermeule wants to change the Constitution. That’s
the only way to radically transform the power and purpose of government.
But he wouldn’t let the American people decide whether they
want to change their own Constitution; he wants the revolution to come from
judges, who are supposed to follow the Constitution. He calls his system
“common-good constitutionalism” and would have judges “read into” the
Constitution various principles and meanings that would turn it into a
different Constitution altogether.
Somehow, more than two centuries ago, the Founders thought
that something like that might be coming. Thomas Jefferson, for example, warned
that if the Constitution means whatever judges want, it would be like “a mere
thing of wax, that they could twist and shape it into any form they please.”
George Mason did not support ratifying the Constitution as
written, in part because it might still allow judges, by reinterpreting the
Constitution, to “substitute [their] own pleasure for the law of the land.”
For Mason, this was a dangerous unintended consequence; for
Vermeule, it is the heart of his new system.
The Founders designed the unelected judicial branch to be
the “weakest” and “least dangerous.” Vermeule would turn that on its head and
urge what Supreme Court Justice Antonin Scalia once called “power-judging.”
William F. Buckley said that he would rather be governed by
the first 2,000 names in the telephone directory than the Harvard University
faculty.
I would rather be governed by the American people and those
we elect than by unelected judges.
Source material can be found at this site.
