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35 posts from March 2021


Ronald Krotoszynski & Atticus DeProspo: Advice and Consent, Faithful Execution, and the Vacancies Reform Act
Michael Ramsey

Ronald J. Krotoszynski Jr. (University of Alabama - School of Law) & Atticus DeProspo (Law Clerk to the Hon. Peter W. Hall, U.S. Court of Appeals for the Second Circuit) have posted Squaring a Circle: Advice and Consent, Faithful Execution, and the Vacancies Reform Act (55 Georgia Law Review 731 (2021)) (85 pages) on SSRN.  Here is the abstract:

Successive presidents have interpreted the Federal Vacancies Reform Act of 1998 to authorize the appointment of principal officers on a temporary basis. Despite serving in a mere “acting” capacity and without the Senate’s approval, these acting principal officers nevertheless wield the full powers of the office. The best argument in favor of this constitutionally dubious practice is that an acting principal officer is not really a “principal officer” under the U.S. Constitution because she only serves for a limited period. Although not facially specious, this claim elides the most important legal fact: an acting principal officer may exercise the full powers of the office, just like a Senate-confirmed cabinet officer. This approach broadly vindicates Article II’s Take Care Clause, which requires that the President have the assistance needed to ensure that “the laws be faithfully executed.” Unfortunately, this approach effectively reads the Appointments Clause out of the Constitution. For a person to hold a principal office, the Appointments Clause expressly requires that the President first seek and obtain the “advice and consent” of the Senate. Without the Senate’s approval, a person cannot constitutionally hold a principal office (i.e., head a cabinet-level department or agency).

Squaring a Circle proposes a better approach that would vindicate both the Take Care and Appointments Clauses: Federal courts should limit the scope of authority acting principal officers may exercise to the performance of essential and necessary tasks – i.e., an acting principal officer must be a caretaker in both form and substance. Federal courts should not allow acting principal officers to undertake new discretionary programmatic initiatives. Moreover, if an acting principal officer attempts to wield the full powers of the office, federal courts should nullify, as ultra vires, discretionary policymaking initiatives that are not clearly essential and necessary to the performance of core executive functions. This approach would render acting principal officers more plausibly “inferior” under the Appointments Clause, would make them subordinate to a supervisor other than the President (Article III courts), and would create a powerful incentive for the President to nominate and obtain the Senate’s approval of a principal officer who could constitutionally exercise the full powers of the office.

Via Larry Solum at Legal Theory Blog, who says "Highly Recommended."


Ilya Somin Interviews Charles Kessler on "The Crisis of the Two Constitutions"
Michael Ramsey

From Ilya Somin at Volokh Conspiracy

I recently interviewed prominent conservative political theorist Charles Kesler for C-SPAN Book TV, on his interesting new book The Crisis of the Two Constitutions: The Rise, Decline, and Recovery of American Greatness. The video is available here.

I tried to strike a balance between giving Kesler a chance to expound on the arguments of the book, and raising  questions about  points where I have reservations. To me, the most interesting part may be the exchange at roughly 20:00-31:00, where it becomes clear that Kesler's rationale for why we have to follow the original meaning of the Constitution is that it got unanimous consent. But he also eventually seems to concede that no such thing ever actually happened (e.g.—groups such as Loyalists and slaves either refused to consent or had no meaningful opportunity to do so). Even the members of the Constitutional Convention did not all consent to it, as three refused to sign (most notably, George Mason). My own rationale for originalism does not rely on consent theory.


At other points in the C-SPAN interview, I try to draw Kesler out on the extent to which he actually rejects the institutions and innovations established by advocates of what he calls the "progressive Constitution." It turns out he may accept a lot more of them than we might initially expect.

And here is the description of Professor Kessler's book from Amazon:

American politics grows embittered because it is increasingly torn between two rival constitutions, two opposed cultures, two contrary ways of life. American conservatives rally around the founders’ Constitution, as amended, and as grounded in the natural and divine rights and duties of the Declaration of Independence. American liberals herald their “living Constitution,” a term that implies the original is dead or superseded, and that the fundamental political imperative is constant change or “transformation” (as President Obama called it) toward a more and more perfect social democracy, made possible by man’s increasingly god-like control of his own moral evolution.

Crisis of the Two Constitutions details how we got to and what is at stake in our increasingly divided America. It takes controversial stands on matters political and scholarly, describing the political genius of America’s founders and their efforts to shape future generations through a constitutional culture that included immigration, citizenship, and educational policies. Then it turns to the attempted progressive refounding of America, tracing its accelerating radicalism from the New Deal to the 1960s’ New Left to today’s unhappy campus nihilists. Finally, the volume appraises American conservatives’ efforts, so far unavailing despite many famous victories, to restore the founders’ Constitution and moral common sense. From Ronald Reagan to Donald Trump, what have conservatives learned and where should we go from here?

Along the way, Charles R. Kesler, editor of the Claremont Review of Books, argues with critics on the left and right, and refutes fashionable doctrines including relativism, multiculturalism, and neoconservatism, providing in effect a one-volume guide to the increasingly influential Claremont school of conservative thought by one of its most engaged thinkers.


Federalist Society National Student Convention Today and Tomorrow at Penn Law
Michael Ramsey

Here is the announcement from the Federalist Society:

Penn Law's Federalist Society Chapter 

40th Annual National Student Symposium 

March 19-20, 2021

"International Law & U.S. Foreign Policy"

Titled "International Law and US Foreign Policy," the Symposium will focus on issues such as constitutional interpretation, international governance, trade, and human rights. For the past 20 years the U.S. has found itself engaging in a variety of conflicts across the globe, confronting the rise of geopolitical rivals in both military and economic influence, and most recently combating the global impact of COVID-19. The newfound focus on U.S. foreign policy has introduced an array of complex and contentious legal and political issues.

     Confirmed Speakers

·  John B. Bellinger III, Arnold & Porter

·  Hon. Stephanos Bibas, U.S. Court of Appeals, 3rd Circuit

·  Hon. Elizabeth Branch, U.S. Court of Appeals, 11th Circuit

·  Prof. Lea Brilmayer, Yale Law School

·  Hon. Ronald Cass, Dean Emeritus, Boston University School of Law

·  Prof. Jacques deLisle, Penn Law

·  Prof. William Dodge, UC Davis School of Law

·  Prof. Claire Finkelstein, Penn Law

·  Prof. Oona Hathaway, Yale Law School

·  Hon. James C. Ho, U.S. Court of Appeals, 5th Circuit

·  Gary N. Horlick, Partner, Law Offices of Gary N. Horlick and Visiting Lecturer, Yale Law School

·  Prof. Eugene Kontorovich, George Mason University Antonin Scalia School of Law 

·  Prof. Jonathan R. Macey, Yale Law School

·  Prof. John McGinnis, Northwestern Pritzker School of Law

·  Prof. David Moore, BYU Law

·  Prof. Jide Okechuku Nzelibe, Northwestern Pritzker School of Law

·  Prof. Saikrishna Prakash, University of Virginia School of Law 

·  Prof. Michael Ramsey, University of San Diego School of Law

·  Hon. Neomi Rao, U.S. Court of Appeals, D.C. Circuit

·  Prof. Beth Simmons, Penn Law

·  Prof. Nicholas Quinn Rosenkranz, Georgetown Law 

·  Hon. Stephen Vaden, U.S. Court of International Trade

·  Prof. Ingrid Wuerth, Vanderbilt Law School

·  Prof. John Yoo, Berkeley Law

I will be speaking on Saturday, on a panel with Eugene Kontorovich, John McGinnis, and Beth Simmons (moderated by Judge Bibas) -- but on international law, not originalism.

See here for registration and the full schedule.


Mark Pulliam on John Finnis on Abortion and Originalism
Michel Ramsey

At Law & Liberty, Mark Pulliam: Is Abortion Unconstitutional?  From the core of the argument:

As a matter of constitutional law, originalists such as Robert Bork, Lino Graglia, and Antonin Scalia argued (correctly, in my view) that, because the Constitution is silent on the issue of abortion, the states should be free to regulate abortion—or not—as they see fit.

But what if everyone was wrong about the premise of the debate?

What if the Reconstruction Era Fourteenth Amendment, instead of protecting a woman’s right to an abortion, protected the unborn child’s right to life? What if the 39th Congress intended to include the unborn as “persons” under the Due Process Clause? So argues Professor John Finnis of Notre Dame’s law school in a provocative article in the April 2021 issue of First Things. Finnis acknowledges that the text of the Fourteenth Amendment, drafted in 1866 and ratified in 1868, is silent on the subject of abortion, as is the drafting history and congressional debates on the measure. He nevertheless contends that the intent to protect the unborn is evident in the reliance of proponents of the Civil Rights Act of 1866 (the provisions of which the Fourteenth Amendment was designed to uphold) on William Blackstone’s Commentaries on the Laws of England (1765).

Blackstone assigned the beginning of life (and thus legal protection) to the unborn upon quickening. At least “by the dawn of the nineteenth century,” Finnis argues, abortion was prohibited under English law from the time of conception. Therefore, if the Fourteenth Amendment was intended to confer on the newly-freed slaves (and others) the rights of Englishmen (as Finnis contends, quoting James F. Wilson, the sponsor of the Civil Rights Act of 1866), the term “any person” in the Due Process Clause includes the unborn. Ergo, abortion deprives the unborn of life without due process of law, and is therefore unconstitutional. In other words, states would be constitutionally forbidden to permit abortion.

Finnis closely explores the reasoning of Roe and delves into the common law background of the concept of “quickening” in America during the 19th century. Finnis is a world class philosopher, and his philosophical arguments are compelling. But wait a minute. The article is about constitutional law, not moral philosophy.

Even if Finnis is correct about the derivation of the Fourteenth Amendment and the meaning and significance of Blackstone’s Commentaries—even if, contra Roe, unborn children are “persons” entitled to due process—does that mean, as the title of Finnis’ article suggests, that “Abortion is Unconstitutional”? Not necessarily. Section One of the Fourteenth Amendment reads, “nor shall any State deprive any person of life, liberty, or property, without due process of law.” Where is the state action?

And further:

Nor is the Equal Protection Clause a plausible basis for banning abortion under the Fourteenth Amendment. As Gerard Bradley has noted, “States enjoy considerable freedom (consistent with the Fourteenth Amendment) to specify conditions under which use of deadly force and acts which create foreseeable risks to the lives and health of others may be performed without criminal liability.” Legislative classifications are generally reviewed under the deferential rational basis test, and courts would be understandably reluctant to micromanage the myriad distinctions, variations, and omissions in states’ penal codes. Laws “discriminate” among post-natal human beings in countless respects, and there is no reason to believe that judicial scrutiny would—or should—be greater for prenatal persons.

It's notable that Professor Finnis' essay has drawn sharp criticism from conservative anti-abortion originalists (see also here from Ed Whelan).  Some critics charge that originalism provides no constraint on judging because originalists will find originalist arguments to support whatever modern policy outcome they prefer.  But the abortion debate shows the contrary.  Finnis' argument has superficial plausibility.  Originalists Pulliam and Whelan favor his outcome (prohibiting abortion) as a policy matter.  They have enormous incentives to adopt his reasoning.  But they see that his argument doesn't really work as originalism, even if it is appealing (to them) as moral philosophy.  (Scalia was the same: a strong opponent of abortion who found as an original matter that the Constitution didn't prohibit it.)  The claim that originalists don't let originalism get in the way of their preferred outcomes is simply mistaken.


Kevin Arlyck: Delegation, Administration, and Improvisation
Michael Ramsey

Kevin Arlyck (Georgetown University Law Center) has posted Delegation, Administration, and Improvisation (Notre Dame Law Review, forthcoming) (67 pages) on SSRN.  Here is the abstract:

Nondelegation originalism is having its moment. Recent Supreme Court opinions suggest that a majority of justices may be prepared to impose strict constitutional limits on Congress’s power to delegate policymaking authority to the executive branch. In response, scholars have scoured the historical record for evidence affirming or refuting a more stringent version of nondelegation than current Supreme Court doctrine demands. Though the debate ranges widely, sharp disputes have arisen over whether a series of apparently broad Founding-era delegations defeat originalist arguments in favor of a more stringent modern doctrine. Proponents—whom I call “nondelegationists”—argue that these historical delegations can all be explained as exceptions to an otherwise-strict constitutional limit.

As this article shows, it is highly doubtful that the Founding generation thought of delegation in such categorical terms. The evidence nondelegationists cite in favor of their preferred classifications—systematically assessed here for the first time—is remarkably thin. More importantly, this article highlights how, for the Founding generation, building the administrative capacity needed to fulfill the national government’s responsibilities was not a quest to trace out hard constitutional boundaries between the branches. It was a dynamic and improvisational experiment in governance, in which Congress sought to mobilize the limited resources available to it in order to meet the myriad challenges the new nation faced.

To recapture early delegation’s dynamism, this article focuses on the Remission Act of 1790. It gave the Secretary of the Treasury broad and unreviewable authority to remit statutory penalties for violations of federal law governing maritime commerce—power a strict nondelegation principle would not have allowed. This arrangement was not the obvious choice, and Congress considered vesting this power in a range of institutional actors before settling on the Secretary. Yet despite deep concerns over the wisdom—and even the constitutionality—of concentrating too much power in the hands of a single executive branch officer, Congress repeatedly affirmed this discretion, and the early Secretaries (including Alexander Hamilton) did not hesitate to use it.

This was a pattern Congress repeated elsewhere, making early delegations of varying breadth across the spectrum of federal administration. This experiment in governance was not easy, nor was it free from controversy. Disputes over how and where to allocate governmental authority were frequent and contentious. But if legislative debates occasionally sounded in a constitutional register, overwhelmingly they turned on the kinds of practical considerations that animated Congress’s deliberations over the Remission Act. When it came to designing a workable administrative system for the new federal government, delegation’s boundaries were apparently quite expansive.

SOMEWHAT RELATED: I missed this earlier article by Professor Arlyck, The Courts and Foreign Affairs at the Founding (2017 BYU L. Rev. 1 (2017)).  Here is the abstract: 

When should the courts defer to the executive branch in foreign affairs? This question — which dominates discussion over the proper role for the judiciary in the United States’ relations with the rest of the world — presupposes an inevitable opposition between judicial decisionmaking and executive branch policymaking. On the standard account, the president takes action in foreign affairs, and the courts acquiesce (usually) or resist (occasionally).

But what if the dynamic between the branches in foreign affairs was complementary, rather than oppositional? What if the executive, rather than asserting plenary authority to structure the nation’s foreign relations, sought to delegate to the courts significant responsibility for resolving questions with critical importance for foreign affairs? And what if the judiciary accepted or declined not based on ideas about the scope of presidential authority, but out of consideration for international comity and its own institutional interests?

To explore this idea, this article looks at the Constitution’s first decade, a time when the Washington Administration actively sought to give the federal judiciary significant authority for responding to the nation’s first major diplomatic crisis. Beginning in 1793, French maritime attacks launched from the United States against Great Britain threatened to drag the new nation into an international war it likely could not survive. Convinced of the necessity of remaining neutral, the Washington Administration sought a means of responding to the wartime demands of one side without giving offense to the other.

The answer lay in the courts. Contrary to standard presidentialist accounts of early foreign relations, by delegating to the courts responsibility for resolving disputes over British property captured by French warships operating from the United States, the executive sought to mobilize the institutional resources of a coequal branch of government to manage a controversy it had neither the will nor the means to address. As this article establishes, however, federal judges resisted the administration’s recruitment effort, evincing grave doubts about the propriety, under treaty and the law of nations, of assuming jurisdiction over such cases. Though in many respects judges supported the administration’s goals, in their decisions they made clear that the executive branch’s policy priorities would need to be balanced against the judiciary’s own institutional concerns and interests.

While current scholarship on the relationship between the courts and the president in foreign affairs largely focuses on questions of deference, the Neutrality Crisis tells us a different tale, one in which judicial decisionmaking complements executive branch policymaking, rather than undermines it. Accordingly, the account presented here reminds us that executive primacy and judicial acquiescence are not the only ways to think about executive-judicial relations in foreign affairs. At the same time, judicial skepticism in the 1790s about the wisdom of becoming enmeshed in foreign affairs disputes suggests that judges themselves might not always agree.

This idea of the courts as taking a modest role in foreign affairs in the post-ratification period is consistent with the views I expressed in this article: Courts and Foreign Affairs: 'Their Historic Role' (35 Const. Comm. 173 (2020)).  I should have made use of Professor Arlyck's work in that project.


Ed Whelan on John Finnis on Abortion and the Constitution
Michael Ramsey

At NRO Bench Memos, Ed Whelan: Are Permissive Abortion Laws Unconstitutional?  From the introduction:

In the current issue of First Things, the distinguished scholar John Finnis has a noteworthy essay bearing the title “Abortion Is Unconstitutional.” In that essay, Finnis goes beyond arguing merely that Roe v. Wade was wrongly decided and that abortion policy should be decided by democratic processes in the states. As his title suggests, he instead argues that the unborn child is a “person” within the meaning of the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment and, as such, possesses general protections against being aborted.

I will explain in this post why I am not persuaded by Finnis’s argument. At the outset, let me emphasize three points. First, I fully agree with Finnis that “prohibiting the killing of the unborn is a matter of simple justice to the most vulnerable among us.” Second, as I observed more than fifteen years ago in setting forth the “three competing positions on what the Constitution says about abortion,” I believe that the argument that Finnis is making “is far more credible than the position taken by the Court in Roe.” Third, in the years since then, advocates of that argument—such as law professor Michael Stokes Paulsen (author of “The Plausibility of Personhood”), Joshua Craddock, and Finnis himself—have deployed the methodology of originalism to make a much stronger case for their position than I had been aware of.

And from later on:

According to Finnis, by the end of 1868, 30 of the 37 states then in the Union had enacted anti-abortion statutes that superseded the common-law prohibition on abortion after quickening, and 27 of these 30 states criminalized abortion “before (as well as after) quickening.”

That would mean that the Fourteenth Amendment, on Finnis’s reading, obligated at least ten states to enact statutes that generally prohibited abortion from conception. If this “plain meaning” would have been “too obvious to need discussion” among the ratifying legislators, wouldn’t we expect some evidence somewhere that some legislators in those ten states recognized that the Fourteenth Amendment would obligate them to enact such statutes? Or that, immediately after the Fourteenth Amendment was ratified, legislators in most or all of those states would have enacted such statutes and cited the Fourteenth Amendment in support of doing so?

This, after all, was the heyday of the movement to codify prohibitions on abortion. By Finnis’s numbers, roughly half the states in the Union had enacted anti-abortion statutes in the two decades before 1868. How simple it should have been for proponents of such statutes to alert legislators in the ten states that they needed to codify a general ban on abortion from conception, and how prompt, under Finnis’s theory, would have been the response.

As Robert Bork wrote in a First Things debate on the same topic two decades ago:

It passes belief that nobody would have said so or raised the question for discussion, but the records are bare of any such question or discussion. The conclusion can only be that those who adopted these Amendments addressed only the rights of persons who had been born.

Agreed, though I would say that the question is whether a fetus was defined as a "person" in nineteenth century law prior to 1868.  The understandings of the state legislature are relevant to the question, but not decisive.  As to the definition of "person," it seems to me that Professor Finnis makes some interesting points but ultimately does not show any more than that a fetus was considered in law as a person for some purposes but not others, to a greater or lesser extent depending on the state.  That does not seem enough to establish a constitutional rule as an originalist matter.

Of course, if originalism is not our law, conservative Justices might conclude that evolving understandings of the beginning of life might make it appropriate to give the unborn all the rights of born children, irrespective of the 1868 understanding.


John McGinnis & Michael Rappaport: Presidential Polarization
Michael Ramsey

John O. McGinnis (Northwestern University - Pritzker School of Law) and Michael B. Rappaport (University of San Diego School of Law) have posted Presidential Polarization (56 pages) on SSRN.  Here is the abstract:

Political polarization is a great political problem of our time. While it has many sources, one important cause is the deformation of our governmental structure. That structure once required consensus to enact important policy changes. Now the President can adopt such changes unilaterally.

Because the President represents the median of his or her party, not of the nation, the decisions of the President normally are more extreme than what would emerge from Congress, particularly when, as is usually the case, the houses of Congress and the President are divided among the parties. Domestically, Congress’s delegation of policy decisions to the executive branch allows the President’s administration to create the most important regulations of our economic and social life. The result is relatively extreme regulations that can shift radically between administrations of different parties, creating polarization and frustrating the search for political consensus. In the arena of foreign affairs as well, presidential power to engage in military interventions and to strike substantial international agreements on the President’s own authority avoids the need to compromise to achieve political consensus.

Understanding the institutional roots of polarization provides a roadmap to changing the law to restore a constitution of compromise. Excessive delegation should be curbed, forcing Congress to make key decisions. The President's initiation of hostilities and executive agreements should be limited by requiring prior congressional authorization or swift congressional ratification after the fact. None of these reforms require us to begin the world anew, but instead to return to tried and tested constitutional structures. In a politics where compromise is routinely required, citizens would become less polarized, seeing each other less as targets or threats and more as partners in a common civic enterprise.

Agreed.  One might add as well that the politicization of the courts (especially the Supreme Court) is part of this phenomenon.  As the courts play an outsized role in policymaking, the President's power to nominate judges and especially Justices becomes much more important (and so more polarizing) than it was under the original design.

(Via Instapundit.)


Anthony Moffa: Constitutional Authority, Common Resources, and the Climate
Michael Ramsey

Anthony Moffa (University of Maine School of Law) has posted Constitutional Authority, Common Resources, and the Climate (Utah Law Review , 2021, forthcoming) (47 pages) on SSRN.  Here is the abstract:

This work sets out to re-examine and challenge the history of the property clause with an eye towards increased congressional reliance on it in the face of daunting threats to our natural environment. No one could seriously question the primary motivations of the Framers, but that does not foreclose the importance of searching for secondary motivations that deepen our understanding of arguably the Constitution’s most explicitly environmental provision. Eugene Gaetke’s work in the 1980’s and Peter Appel’s work twenty years later laid the groundwork for the argument here by pushing back on the originalist argument for a narrow interpretation of Congress’s power under the clause. The argument put forward in this piece completes the picture, making an affirmative case for a fuller, conservationist original understanding, one that acknowledges the historic role of the federal government in preserving the nation’s environment and natural resources.


Stephen Sachs on Justice Thomas in Uzuegbunam v. Preczewski
Michael Ramsey

At Volokh Conspiracy, Stephen Sachs (Duke): Meanings, Intentions, Original Law.  From the introduction: 

In the Supreme Court's recent standing decision, Uzuegbunam v. Preczewski, both sides made originalist arguments. An interesting post by Mike Dorf asks what kind of originalism this was.

To Dorf, neither Justice Thomas, for the majority, nor the Chief Justice, in dissent, really sought the original public meaning of the terms "Cases" or "Controversies." They didn't "consult late 18th century dictionaries, corpuses, and perhaps other sources," to ask "whether a well-informed English speaker in the early Republic would have understood litigation in which the plaintiff sought only nominal damages to be a 'case' or 'controversy.'" Instead, the Court cited the views of people like Justice Story or Lord Holt on whether common-law courts could hear suits for nominal damages. Thus, the Court must have been engaging in "old-school intentions-and-expectations originalism"—"showing that the framers and ratifiers of the Constitution intended and expected the courts to hear cases in which the plaintiff sought only nominal damages."

This iron choice between meanings or intentions leaves out another important possibility, namely the original law. If Article III courts could or couldn't hear nominal-damages suits at the Founding, the same likely remains true today. The history matters, not because we have an affirmative obligation to do as the Founders did, but to the extent the courts lack any new authority to do differently: perhaps nothing has happened to abridge, enlarge, or modify the scope of the judicial power since it was adopted in Article III.

So the reason why Justice Story and Lord Holt seem obviously relevant is that we want to recover what the law was upon Article III's ratification—and Justice Story and Lord Holt, neither framers nor ratifiers, might still know more about this than we do. Article III let the federal courts hear "Cases, in Law and Equity, arising under . . . the Laws of the United States." What we need to know isn't really the meaning of the words "Cases" or "in Law," so much as the scope of the common-law jurisdiction those words would have conferred. If common-law courts in general could hear these sorts of cases at the Founding, it's harder to argue that Article III forbade the federal courts from doing so.

Agreed, though I'm not sure this is different from saying that Article III's text incorporated the ordinary modes of adjudication of the common law courts, which I would describe as its public meaning (see my thoughts on the case and Professor Dorf's reading here).


Leonid Sirota & Mark Mancini on Interpretation and the Rule of Law
Michael Ramsey

At Double Aspect, Leonid Sirota & Mark Mancini: Interpretation and the Value of Law -- Why the interpretation of law must strive for objectivity, not pre-determined outcomes.  From the introduction:

We write in defence of a simple proposition: there is a value in ordering relations among individuals in large communities through law, rather than through other modes of exercising authority, and this value is not reducible to the goodness―by whatever metric―of the content of the law. Of course, good law is better than bad law, but law as a form, as the institution that allows individuals, groups, and organizations to interact with one another in predictable ways while constraining what those with power can do to those without, is precious quite apart from its substantive merits.

Law is the only mediator we have in a pluralistic society where there is limited agreement on foundational moral values, and still less on the best ways of giving them effect. Law records such agreement as exists for the time being, while also exposing this record to critique and providing a focus for efforts at reform. It is neither sacred nor permanent, but it is a common point of reference for the time being for people who disagree, sometimes radically, about the ways in which it should be changed. These are valuable functions regardless of whether one agrees with the substance of the law as it stands from time to time. Increasingly, however, certain schools of thought tend to deny that law has any value apart from its utility as a means to some political or another. We regard this as a dangerous development.

Now, to serve as the common point of reference in the face of widespread disagreement about values and policies, law must have some characteristics beyond its substantive political content; it must contain other features, often described in the literature on the Rule of Law. For example, it must be public, sufficiently certain, and stable. Of course, law actually enacted by constitution-makers, legislators, or officials exercising delegated authority, or articulated by common law courts, sometimes falls short of the ideals of clarity or certainty. Sometimes the words of this law will be broad, dynamic, and open-textured. But for law to fulfil its function, indeed to be law at all, it must have a fixed content independent of the views and preferences of those to whom the law applies. To the extent this understanding of law is now considered unorthodox, we hope to correct the record.

And from later on:

... [L]living constitutionalism asks judges to change or override the meaning of the law as written in the name of extraneous moral principles or policy preferences, which it purports to locate in the political community. Pragmatism in statutory interpretation does much the same thing. This approach is problematic enough when it comes to ordinary legislation, because it arrogates the process of amendment to judges. It is doubly troubling in the constitutional realm: not only does it arrogate the process of amendment to judges, but it undermines the purpose of Constitutions—to place certain structural choices about institutions, as well as certain individual rights and freedoms, beyond the reach of the ebb and flow of divided public opinion, leaving their amendment to more consensual procedures.

Unfortunately, this problem is not confined to one side of the political spectrum. A new illiberal strain of legal thought has risen on the right. Driven by Adrian Vermeule’s theory of “common good constitutionalism”, the idea is that conservatives should adopt a style of constitutional interpretation that would “involve officials reading vague clauses in an openly morally infused way … to reach determinations consistent with the common good.” The moral principles that would guide this endeavour are those drawn, above all, from the Catholic natural law tradition; the definition of the common good to which judges would advert is thus one which is, to put it mildly, not universally shared in pluralistic societies.   

This attempt by those on the right to reverse-engineer such an interpretive theory should be rejected just as firmly as living constitutionalism, which it mimics. For Professor Vermeule, for example, the very fact that progressives have used constitutional law itself to achieve their aims justifies a conservative attempt, not to put an end to such tactics, but to resort to them, albeit in the service of a different set of values. Like the progressives, he and his disciples look to extraneous moral and policy commitments as guides for legal interpretation, disregarding the law’s role as the authoritative record of the settlement of disagreement and point of reference for citizens whose views of what is good and just differ, seeking to impose pre-ordained results regardless of whether they are consistent with what the law actually is. It too regards separation of powers as passé, a relic of the Enlightenment’s mistakes and an obstacle in the path of those who know better than voters, constitutional framers, and legislators.

In conclusion:

In sum, we propose not to purge the law of moral and policy considerations, but to re-commit to the view that considerations embedded in legal texts adopted by democratic institutions after proper debate and subject to revision by the same institutions are the ones that ought to matter in legal interpretation. They, that is, rather than the real or hypothetical values and needs of contemporary society, let alone the conjectures of 16th century scholars from the University of Salamanca.

This upholds the authority of democratic institutions while calling on the courts to do what they ought to be able to do well: apply legal skills to reading and understanding legal texts. No less importantly, this allows the law itself to perform its unique and precious function, that of providing a touchstone for the diverse members of pluralistic communities, who disagree with one another’s moral and political views, yet still need a framework within which disagreements can be managed and, more importantly, they can simply get on with their lives. The illiberal attempts to subvert the law’s ability to do so, in the pursuit of victories which would come at the expense of citizens’ personal and political freedom, are a cause for concern, and for resistance.