“. . . What’s missing from our law today is an emphasis on the common good, a concept that from the founding era onward was central to the American legal tradition, embodied in the references to the “general welfare” in both the preamble to the Constitution and its text. The classical legal tradition, the mainstream of the Western legal tradition until the 20th century, holds that laws should be interpreted in light of the legitimate aim of government, which is the flourishing of the community as a community. Classical constitutionalism holds that our political community can succeed only as a whole, rather than as a collection of warring interests, competing ideologies and isolated individuals — the underlying logic of modern jurisprudence. The aim of constitutional government and legal interpretation should be to promote the classical ideals of peace, justice and abundance.
The common good is no abstract idea; its absence is keenly felt today. In the past few decades, Americans have discovered that individuals and families cannot flourish if the whole community is fundamentally unhealthy, torn apart by conflict, lawlessness, poverty, pollution, sickness, and despair. Gated residences, private schools and Uber have not sufficed to immunize even the affluent against the consequences of living in a decaying, fractured and embittered polity. No family or civic association is an island, and the health of civic society and culture are themselves dependent upon the health of the constitutional order.”
David Lindsay: Fascinating guy, but where is he on Roe v Wade and women’s rights?
“When I left the daily Supreme Court beat back in 2008, the Week in Review, as The Times’s Sunday Review section was then called, invited me to offer some reflections on nearly 30 years of writing about the court, its cases and its members. The long essay ran under the headline “2,691 Decisions,” a number based on an editor’s calculation of how many decisions the court had issued during my time on the beat. I ended it with an observation about the “vital dialogue” between the court and the country. This was my conclusion:
“The court is in Americans’ collective hands. We shape it; it reflects us. At any given time, we may not have the Supreme Court we want. We may not have the court we need. But we have, most likely, the Supreme Court we deserve.”
A friend who recently came upon that article challenged me. “Do you still think we have the Supreme Court we deserve?” she asked.
Actually, sadly, my answer now is no.
It’s not that I think the country simply deserves a Supreme Court that happens to agree with me; I was finding plenty to disagree with back in 2008. Justice Samuel Alito had taken Justice Sandra Day O’Connor’s place in early 2006, wrenching the closely divided court to the right. In June 2007, Justice Stephen Breyer, during an impassioned oral dissent in a highly charged case on what measures public school systems can take to maintain racial diversity, lamented that “it is not often in the law that so few have so quickly changed so much.” “