The Differing Ground on which Textualists and Classical Lawyers Stand

A Response to Professors Casey and Vermeule

The New Digest is thrilled to feature this response essay from Professor Brian McCall, the Orpha and Maurice Merrill Professor of Law at the University of Oklahoma School of Law. We highly commend Professor McCall’s book "The Architecture of Law: Rebuilding Law in the Classical Tradition (Notre Dame University Press 2018) to all our readers. It offers a learned but accessible tour d’horizon of the fundamentals of the classical legal tradition.

In August 2023, Conor Casey and Adrian Vermeule published a short essay[1] reacting to the Summer Canary Memorial Lecture of Judge Rao, of the United States Court of Appeals for the District of Columbia Circuit, given at Case Western Reserve University in 2022.[2] They conclude: “After some three years of debate over the revival of the classical legal tradition, Judge Rao’s effort, if nothing else, is a sign of the times. The debate over legal interpretation has reached a kind of Augustan settlement, in which the outward forms and labels of the textualist movement are preserved while the content is everything classical lawyers could wish. “[3]  I agree with their conclusion to an extent and also celebrate this interesting development in the world of Textualism.  Yet, I write this essay to add two distinctions to Casey and Vermeule’s argument that I believe strengthen their case but one of which may suggest the Augustan Settlement may not be a lasting resolution. 

First, Casey and Vermeule respond to Judge Rao’s claim that judges should not pronounce on “abstract moral principles or policy views.”[4] Although  Casey and Vermeule do not say so directly, I believe they likely agree with Rao that judges in our legal system should not displace settled statutory policy choices with their own policy views.  They do take issue with Rao about the consideration of “abstract moral principles.”  They agree that judges ought not “displace or amend positive law by reference to all-things-considered moral decision-making . . . . But following the classical tradition, when attempting to discern the meaning of posited law and the reasoned choice of the lawmaker – or lex - judges can and should have regard to those principles of legal justice – ius - that are also part of a community’s corpus juris. Such principles are not moral principles tout court but are internal to law and concerned with the maintenance of a just and reasonable ordering of persons in a political community through law and legal institutions, and of proper treatment of citizens by political authority; both of which are standing requirements of justice and the natural law. The classical tradition, therefore, incorporates a subset of political morality within the law. . . .”[5]

I certainly agree with Casey and Vermeule’s overarching point here.  There are certain considerations that in our constitutional system are inappropriate for judges to consider in a way that would amend or alter already given positive human law.  Yet, I think the line demarcating the permissible from the impermissible could be better clarified.  The root of the difficulty is the word “morality” or “moral principles.”  This word in the modern context has become seriously muddled in its meaning (as a result in large part from Legal Positivists’ futile attempt to separate law from “morality.”)  Casey and Vermeule essentially say that some moral principles are off limits for judges while others are not.  The line they draw is between moral principles tout court and moral principles that are related to legal justice and thus part of every community’s legal system.  In a sense their distinction is an attempt to have only a partial separation of law and morality.  A judge can interpret and evaluate a posited law in light of some moral principles but not others.  The problem is that morality and law are not two separate normative systems; they are branches of one normative system.  There is not one system called morality with its axioms and principles and another system called law with its axioms and rules.  It seems that Casey and Vermeule at least implicitly accept this two normative systems view with the distinction that they believe some moral principles cross over and are part of both systems. However, the modern understanding of the word morality to mean a compartmentalized set of nonlegal norms (primarily negative) governing personal behavior did not even exist in the vocabulary of classical or medieval philosophers.[6] In the classical tradition, the principles of morality and the rules of law are both derived from the same general precepts of natural law.  Moral principles and legal rules are particularized guides of action that share an ultimate source, the principles of natural law.[7]  The distinction between the field of morality or ethics and law is not a distinction of a body of principles but a distinction of persons.  Concrete rules of action that are laws must be formulated, promulgated, and enforced by human beings possessing legitimate legal authority, people in Aquinas’ words who have care of the community.  Moral or ethical rules of action are formulated and applied by individuals (or personal but not legal superiors).[8] By saying formulated and applied by individuals I do not mean the content of morality is subjective and up to each individual.  Each individual must be determining moral rules of action based on the objective precepts of the natural law.  Yet, the work of determination is done by the individual (or superior) and not legal authorities.  Thus, the distinction is not in the principles applied but who formulates the detailed rules and applies them to concrete actions.[9]    In that sense Positivists’ attempts to separate law and morality are flawed not because moral principles are part of the law but rather because law (in the form of natural law precepts) is part of morality (as well as part of human law).  

A better way to distinguish what judges are permitted to consider from what they should not can be found not so much in the distinction between moral principles tout court and moral principles that concern legal justice but in the distinction between natural law deductions and determinations.  As I explain in greater detail in Chapter 6 of my book The Architecture of Law: Rebuilding Law in the Classical Tradition,[10] human law makers (in this case a term that includes both legislators and judges) perform two distinct roles: (1) deducing secondary precepts of natural law from the more general precepts of natural law, and (2) making specific determinations of natural law precepts for a particular community.  In the American Constitutional system, the legislature possesses the primary responsibility for making determinations of natural law precepts to orient actions to the common good.  Judges, in the common law tradition, may retain the ability in the absence of a legislative determination to make particular determinations of natural law in order to resolve cases before them, but those determinations are subject to being overturned by the applicable legislature.  For example, although it is a general precept of natural law that evil doers ought to be punished, that they be punished in a specific way with a particular sentence is not determined by natural law; it is left to be determined by human law makers.[11]  Thus, if a legislature has determined that a particular crime be punished in a specific way (for example a minimum prison sentence), then it is not permissible for a judge to make a conflicting determination.  The determination has been made by an authority entrusted with the jurisdiction to make this determination that in its detail is not required by natural law.  A judge who simply ignored a minimum sentence of 20 years as prescribed by statute and instead imposed 2 years would be usurping the power of the legislature to determine the general precept of natural law.  The choice of 20 years is a determine of natural law.  To a certain extent the concept used by Rao of a “policy view” somewhat captures the same idea but less precisely since Rao’s term leaves open ended what counts as “policy.”

Yet, the above argument does not mean that judges are equally prohibited from considering general or primary precepts of the natural law from which secondary precepts and deduced and which lawgivers make concrete by determining for particular circumstances.  Judges are free to, and in fact required to, engage general precepts of natural law for two purposes: (1) to interpret any ambiguous determinations of the legislature and (2) to decide if a particular determination by the legislation is a permissible determination of a precept of natural law.  If, for example, a legislature determined that an offender who was convicted of driving a car 5 miles over the determined speed limit should be punished with life in prison, a judge certainly could consider whether such a determination was unjust and illegitimate for violating the general precept of natural law that any punishment must be proportionate to the offense.[12]  Thus, the judiciary, in the American Constitutional system, is separated from the ultimate authority to make determinations (what could be termed less precisely “policy views”) and simply reversing a valid and just legislative determination would be an illegal usurpation of power.  Yet, judges are never prohibited from interpreting laws and evaluating their legitimacy in light of the general precepts of the natural law that are always applicable.  One does not have to attempt to distinguish moral principles from moral principles that are part of the law since the ultimate source of all such principles are the same.  The distinction is the use of them.  If the judge is using them to deduce and then evaluate the legitimacy of a legislative determination then such use is permissible. 

The second comment I would like to share regarding the argument of Casey and Vermeule relates to the phenomenon of Textualists ending up in the same (or at least very similar) place as classical common good jurists on the substance of legal issues.  I believe one way in which this has occurred over the last century is through the use of historical analysis in Textualist interpretations of the Constitutional text.  The Textualist justices, such as Antonin Scalia and Neil Gorsuch and at times Anthony Kennedy, have approached the interpretation of Constitutional terms (and particularly Due Process) in the first instance by reviewing the historical understanding of those terms at the time of adoption of the text.[13]  Casey and Vermeule likewise note that Justice Barrett has expanded her notion of text in context by widening the context to be considered from the document itself.[14]  There is a simple reason why the correct use of an historical method to add context by Textualists should lead to the same substantive conclusions as a classical lawyer.  The Constitution lacks a defined terms section.  The drafters of the Constitution and its Amendment used terms such as “Liberty” “Due Process of Law” and “Equal Protection” without offering any definition.  As I quickly learned in practicing corporate finance law for ten years, all the legal work was done in the definitions.  Almost every bond indenture contains the same operative provisions; yet each one differed in effects through defining the key terms differently (Indebtedness, Incur, Permitted Indebtedness, etc.). Likewise, any examination of modern legislative history will reveal that practically every new statute contains a definition section that defines the terms used in the operative provisions.  Why does the Constitution lack a definition section?  Casey and Vermeule allude to the reason: “The American framers and ratifiers, with their constant references to the unwritten ‘great first principles’ of constitutional government, lived and breathed within a particular local variant of the tradition.”[15]  As Stuart Banner has explained in his recent work of legal history,[16] until the late nineteenth or early twentieth century, American lawyers (which would include the “framers and ratifiers”) understood that the natural law was an unwritten part of the US legal system.  Thus, the drafters of the Constitution and its Amendments did not need a “definition section” for terms that had a long (centuries) history of meaning that they simply took for granted was part of the legal system. Yet, by the early twentieth century, the legal profession had essentially ejected natural law from the legal system, and with it went the definitions of the now undefined critical terms in the Constitution.

Thus, historical Textualists who believe that terms in the Constitution should be interpreted in accordance with the meanings those terms had at the time of adoption would, if they get the history right, be applying the same substantive law as classical lawyers albeit for different reasons.  Modern Textualists who have surrendered to Legal Positivism (such as the late Antonin Scalia) would simply claim that the natural law meanings of these terms were part of the text when it was adopted (not because natural law was part of the law but because the authors had these meanings subjectively in mind).  They are thus simply applying the text of the Constitution.  A classical lawyer could dispense with such methodology since every legal text is written, and thus must be interpreted in light of and also constrained by, the general principles of natural law that are part of every legal system.  Thus, for classical lawyers, many provisions of the US Constitution would be part of US law even if they were nowhere written in the Constitution since many provisions simply restate general principles of natural law (such as the prohibition on depriving one of life, liberty, or property without due process of law).  The framers chose to write them in the text, but the definitions were not included as they were understood to be part of the legal system already. Yet, Textualists reach the same principles by arguing the text incorporates these principles because they formed the meaning of the words as used by the authors of the texts.  The subjective mental state of the framers and ratifiers incorporate these meanings.  For a classical lawyer, this subjective mental state is irrelevant.

In a certain sense, one might be ambivalent about the means if the end is the same.  If Textualists will end up in the same place as classical lawyers anyway, is there any reason to regret the different approach?  I think the answer lies in a case like Obergefell v. Hodges.  Applying the same substantive principles as classical lawyers because they merely happened to be the understanding of a group of people who happened to live at the time of the drafting and ratification, is a weak foundation.  It places these general principles of natural law in the same category as policy choices.  These principles hold no legal significance in themselves; they merely happen to have been the understanding of these men who lived at an historical period and thus through an accident of history made their way indirectly into American Law.  When described this way, it is easy to see why those principles can be easily abandoned when a justice like Anthony Kennedy wants to reach a result that differs from the historical understanding of terms.  Since the ultimate basis of the historical interpretation is the historical fact that a group of people in the past understood a term like marriage a particular way, it becomes much easier to twist, update, or simply jettison that interpretation and reach a result that would have shocked the framers and ratifiers (as in the case of Obergefell v. Hodges).  On the other hand, the meanings of such terms are more secure if they were part of the understanding of the generation of founders and ratifiers not because they happened to believe them subjectively, but because they are necessarily and perennially part of every human legal system since the natural law is part of, in fact the foundation of, every human legal system.  The founders and ratifiers held certain meanings because those legal terms were part of the natural law that they understood, what most jurists today have forgotten, that they are part of the law of the nation whether they are subjectively accepted or not.  Thus, ultimately the classical lawyer reaches the same or similar conclusions or interpretations as Textualists but ultimately by standing on much firmer, objective as opposed to historically subjective, ground.  This conclusion suggests that like the first Augustan Settlement, this legal Augustan Settlement may only last for a period of time, and the weaknesses in the compromise will cause it to collapse. 

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[1] Conor Casey & Adrian Vermeule, “Judge Rao's Unintentional Surrender: On the Augustan Settlement of Our Law,” The New Digest 1 (23 August 2023).

[2] Honorable Neomi Rao, Lecture: 2022 Sumner Canary Memorial Lecture: Textualism’s Political Morality, 73

Case W. Rsrv. L. Rev. 191 (2022).

[3] Casey & Vermeule, at 5.

[4] Id., 4 (emphasis added).

[5] Id., 4-5.

[6] See Alasdair MacIntyre, Three Rival Versions of Moral Enquiry: Encyclopaedia, Genealogy, and Tradition: Being Gifford Lectures Delivered in the University of Edinburgh in 1988 (Notre Dame, IN: University of Notre Dame Press, 1990), 28 and 191.

[7] As I have noted elsewhere, I am deeply grateful to Professor Jean Porter for this insight that law and morality are different branches of the same normative system.

[8] This statement should be qualified by the phrase “in this life” since ultimately these formulations and applications in a person’s life are subject to God’s judgment (as the source of natural law) who, as Aquinas reminds us, leaves “nothing unpunished.”  Summa Theologica, II-II, Q .77, A.1, Reply to Objection 1.

[9] This distinction begs the question of deciding the lines of jurisdiction among individuals, superiors, and lawgivers.  Russell Hittinger discusses this issue by defining three orders of prudence within which any decision can fall.  See 22.                  Russell Hittinger, The First Grace: Rediscovering the Natural Law in a Post-Christian World (Wilmington, DE: ISI Books, 2003), 99.

[10] Brian M. McCall, The Architecture of Law: Rebuilding Law in the Classical Tradition (Notre Dame University Press 2018).

[11] See Summa Theologica I-II, q. 95, a. 2.

[12] A concept that is contained in the Eighth Amendment to the US Constitution prohibiting “cruel and unusual” punishment. 

[13]That does not always ensure the justice will reach the correct legal conclusion as in the case of Kennedy when he reviewed the historical interpretation of liberty and marriage but then essentially threw it out in reaching his decision in Obergefell v. Hodges, 576 U.S. 644 (2015).

[14] Casey & Vermeule, at 2.

[15] Id., at 4.

[16] Stuart Banner, The Decline of Natural Law: How American Lawyers Once Used Natural Law and Why They Stopped, (Oxford University Press 2021).