Common Good and Bad Ideas

Boise, ID. In October of 2016, Adrian Vermeule had scant use for the law as a culture-molding force. In an interview with Inside the Vatican (later republished at First Things), the Harvard Law professor said this:

I put little stock or hope or faith in law. It is a tool that may be put to good uses or bad. In the long run it will be no better than the polity and culture in which it is embedded. If that culture sours and curdles, so will the law; indeed that process is well underway and its tempo is accelerating. Our hope lies elsewhere.

With Common Good Constitutionalism, though, Vermeule now sees more potential for the law. It “can encourage those subject to the law to form desires, habits, and beliefs that better track and promote communal well-being. The subjects’ own perceptions of what is best for them may change over time anyway, as the law teaches, habituates, and re-forms them.” This is a law that is not merely derivative of culture but is actively guiding it, and is doing so with a decisive leader at the helm.

Promoting a substantive vision of the good is, always and everywhere, a proper function of the political authority. . . . The main goal of common good constitutionalism . . . is to ensure that the ruler has both the authority and the duty to rule well.

That sort of talk had defenders of classical liberalism raising eyebrows and flailing arms when Vermeule first floated his concepts via a March 2020 article in The Atlantic. In response, David French penned “Against Christian Authoritarianism” and highlighted his concerns with Vermeule’s call for “a powerful presidency ruling over a powerful bureaucracy,” as well as Vermeule’s hope that “[t]he bureaucracy will be seen not as an enemy, but as the strong hand of legitimate rule.”

Authoritarian Times

Today, Vladimir Putin’s strong hand brings death and destruction to Ukraine, and he does so with the tacit blessing of the Russian Orthodox Church. Aspects of America’s much more fragmented religious institutions show signs of enmeshment with Donald Trump’s authoritarian tendencies. Some American conservatives—the most notable being regular Putin apologist Tucker Carlson of Fox News— have been, well, less than scathing in their assessments of the Russian leader and his latest war. Not-quite-so-strong men such as Hungary’s Viktor Orbán have also received favorable coverage from elements of the right.

Add to that the rhetorical (if not necessarily numerical) rise in recent years of integralism, with its dream of a world where the Catholic Church defines the common good for all, and one might rightly wonder just what the book-length version of Vermeule’s argument could bring. After all, Rod Dreher has called Vermeule “the leader of American integralists” and the movement’s “intellectual godfather.” Vermeule’s book also features endorsements from Sohrab “Against David French-ism” Ahmari, and Patrick Deneen, author of Why Liberalism Failed.

If one is hoping/fearing that the extra pages might include an explicit explanation and endorsement of an imperialistic society, your hopes/fears are indeed met by Vermeule. The model, though, is the ancient Romans, not Putin’s Russia or a hypothetical American theocracy.

A Pox on Both Your Houses

At its core, Common Good Constitutionalism is a call for the reinvigoration of the classical law approach rooted in Roman jurisprudence. Vermeule often presents a persuasive case, one this initially skeptical reader was not expecting. His presentation is not without its eyebrow-raising moments, but first let me highlight what Vermeule does well.

Vermeule is correct to criticize both the right and the left for their approaches to constitutional interpretation. Pointedly, he rebukes the conservatives of today for failing to understand and properly conserve the legal heritage of which the 1776/1787 generation deeply imbibed. “No amount of fundraising by the Federalist Society,” Vermeule puckishly writes in the book’s penultimate paragraph, “can get well-read law students and younger legal academics to unsee that the founders were nothing like Robert Bork. They were in fact classical lawyers and natural lawyers.”

Originalism, the dominant dogma on the right-centered on applying the original meaning of a text, coalesced as a legal theory in reaction to the “living constitutionalism” of the Supreme Courts under Chief Justices Warren and Burger. That evolutionary theory had turned constitutional law away from the actual words of the Constitution and to broad themes that the justices could mold to address the problem at hand. The slogan could have been “Power to the Penumbra!” as the judicial branch found in the shadows of the Constitution society-altering rights to abortion and the foulest forms of speech. To be fair, these courts also took on the scourge of America’s institutionalized racism, but they often did so in a results-oriented manner that treated words like “equal protection” and “due process” as mere clay without any definite meanings.

Originalism at its best takes words seriously. Vermeule is correct to point out that originalism is not always at its best, though. Among the errors of the right he highlights is Bostock v. Clayton County. There the “uber-originalist” Justice Gorsuch (backed primarily by liberals) held that the word “sex” in the 1964 Civil Rights Act prohibited discrimination based on homosexuality and transgenderism in addition to that stemming from a person’s status as a male or female. Such a result would likely have come as a shock to almost everyone alive in 1964. While cloaking his actions in a veil of textualist neutrality, Gorsuch just so happened to also bend the law to his own personal preferences (leanings which were evident to anyone paying attention to his church, his friends, and his record).

Vermeule also highlights recent decisions from purportedly originalist justices that were perhaps even more egregious. At one extreme, in 2020’s Siela Law LLC case, Justice Roberts and the conservative bloc read into broad constitutional themes enough specificity to invalidate Congress’s creation of the Consumer Financial Protection Bureau because of its single Director structure. One might call this the invocation of penumbras by the right. At the other end of the spectrum, essentially the same conservative bloc joined the liberals in an opinion written by Justice Kagan upholding state laws penalizing so called “faithless electors,” members of the Electoral College who dared to defy voters’ expectations. Yet, as Vermeule points out, such elector independence is quite consistent with the text and history of the Constitution itself.

Vermeule’s well-taken point is that originalism has at times been bent to meet the political morality of those who fly its banner. Conversely, the flag is simply packed away when post hoc developments have so routed the field as to make the original intent of the founders culturally untenable. In addition to the Electoral College case, Vermeule notes that there is no great groundswell of support among conservatives for making what would be a strong originalist case for anti-blasphemy laws.

With no mechanism for setting the level of textual generality to be applied, a kind of “living originalism” can be invoked so that even a liberal like Kagan can famously say “we are all originalists now.” Kagan’s oft-quoted words are best seen, Vermeule argues, not as a victory for originalism but as a sign of its vapid amorphousness.

Of course, the author is no defender of the judicial liberals either. “The progressive judge,” Vermeule writes, “instrumentalizes the law in the service of a very particular liberationist narrative, in which ‘rights’ are continually ‘expanded’ to free an ever-larger set of individuals from unchosen obligations and constraints—legal, moral, and traditional, even biological.” Exhibit 1 is Obergefell v. Hodges, where Justice Anthony Kennedy, the man who ultimately filled the seat to which Bork was first nominated, imputed “animus” to anyone who disagreed with the majority carving a right to gay marriage into the Constitution. For Vermeule, the decision is “a prime example of progressive sacramental constitutionalism” and “what progressive constitutionalism looks like when it has become detached from the objective legal and moral order that underpins classical legal theory and the common good.”

While liberals and activist libertarians like Kennedy have often asserted that they really are doing some sort of objective law rather than just imposing their enlightened preferences on the backward, Vermeule calls a spade a spade. The goal is “endless liberation” and the judiciary is simply a means to achieving that end. Here, Vermeule echoes my former professor Lucas “Scot” Powe, a rare liberal who said the quiet part out loud with his 2002 book The Warren Court and American Politics. There, Powe— to the chagrin of many fellow liberals—essentially agreed with the conservative critique that the Court has long served as an unelected super-legislature. Somewhat similarly, some conservatives have criticized Vermeule for giving succor to liberals through his damning of originalism.

Back to the Future

For Vermeule, the “dual-headed regime of progressivism and originalism [are] claiming to be each other’s nemesis, while in fact propping each other up.” The third way he proposes is the old way of the classical legal tradition. How does this tradition differ from today’s two dominant alternatives? In Bostock, Justice Gorsuch wrote, “Only the written word is the law.” Vermeule paints a broader picture of the law:

On the classical approach, however, the ‘law’ (ius) itself includes considerations beyond the text (lex). The background principles of ius themselves enter into and help to determine the meaning of lex. Enacted texts deserve great respect as a determination of the legitimate public authority, but the law is broader than their temporary and local commands, and it is presumed that those commands can be and will be harmonized with the background ius.

Is this vision of the law beyond the text an invitation to the sorts of abuses that have characterized the liberal judiciary? It would certainly seem to be without a standard that can securely cabin the law, broadly understood. Here is where Vermeule’s proposal begins to crash upon the rocks of our current cultural fragmentation.

As one has likely surmised from the title of his work, Vermeule looks to the classical law’s focus on “the common good” as the framework around which the law should be built and to which it should offer support:

[T]he common good is, for purposes of the constitutional lawyer, the flourishing of a well-ordered political community. The common good is unitary and indivisible, not an aggregation of individual utilities.

Perhaps, one’s nerves are still unsettled at the aspirational nature of such a definition. Just who defines what “flourishing” looks like? Vermeule attempts to offer one more layer of particulars:

To give this more specific content, I look to the precepts of legal justice in the classical law—to live honorably, to harm no one, and to give each one what is due to him in justice—and to the related ragion di stato tradition in early modern Europe, which articulates the central good at which constitutionalism should aim. These goods include, in a famous trinity, peace, justice, and abundance, which I extrapolate to modern conditions to include various forms of health, safety, and economic security. I also elicit from the tradition the key principles of solidarity and subsidiarity.

That, though, is about as specific as it gets. True, Vermeule highlights various examples, positive and negative, and he does so in prose that, while occasionally slipping into ivory tower academic arrogance, is generally accessible to an intelligent generalist. He makes a strong case that the classical tradition has not been totally obliterated from the American system, highlighting administrative law as a somewhat unlikely harbor for the classical traditions of reason and non-arbitrariness.

Vermeule is quite correct that all visions of the law must be centered on some sort of moral underpinnings, some vision of what it means for society to flourish. Every statute legislates some form of morality. Every judicial decision is sifted through some cultural paradigm.

Originalists are lying to themselves and others if they claim to always be making purely neutral applications of texts divorced from any normative judgments. Yet, this does not mean that conservative justices should throw off their black robes and embrace a role as lifetime super-legislators in the same manner that the liberals long have. There are other visions that can be embraced, including a judicial role that is far more modest than that of a revolutionary. The umpire calling balls and strikes model of Chief Justice Roberts may at times succumb to unconscious biases, but it need not be seen as disingenuous sham. Vermeule stresses that “officials have a duty and corresponding authority, to promote the common good—albeit in a manner consistent with their particular roles” and the role of the judge for him is to “broadly defer to political authorities, within reasonable boundaries.” Nevertheless, the end result is an expanded role for judges in comparison to the conservative orthodoxy of today. In sum, Vermeule effectively plucks some rotten fruit from the tree of originalism, but before embracing his more vigorous judiciary we should ponder that bushels of originalist decisions represent real improvement over the liberal dictates of prior eras.

What’s a Constitution Got to Do with It?

The book could have more accurately been entitled Common Good Rule because constitutionalism itself, and indeed the particulars of the United States Constitution, have little impact on Vermeule’s argument. He seems all too eager to reduce the Constitution to a set of “sweeping generalities and famous ambiguities” that “afford ample space for substantive moral readings that promote peace, justice, abundance, health, and safety, by means of just authority, solidarity, and subsidiarity.” Our founding compact is seen as merely a “loose fitting garment that leaves room for flexibility and adjustment over time as circumstances change.” Common good constitutionalism is “not enslaved to the original meaning of the Constitution” but “[i]nstead it reads constitutional provisions to afford public authorities latitude to promote the flourishing of political communities.”

For liberals, much of constitutional law has been reduced to musings on “equal protection” and “due process.” For Vermeule, the General Welfare Clause plays a similar role and acts as the key that unlocks a world of possibilities. He downplays “so called ‘federalism’” and state sovereignty becomes greatly diminished in Vermeule’s eyes. Whether one lives in California or Texas is seen as inconsequential, a view belied by the moving trucks exiting the Golden State for the Lone Star State.

The views of the actual drafters of the Constitution are never discussed in any depth. Vermeule instead emphasizes pre-constitutional powers he sees as inherent in sovereign rule and defends the historical expansion of the central government. “Over time,” the professor writes, “the difference between the state police power and the federal enumerated powers became more theoretical than real.” This expansion of national power “is a development that preserves the principles of the common good and general welfare that always underpinned that [original constitutional] scheme, and is therefore valid.” In short, Vermeule endorses the erosion of the America’s original constitutional text because the result is revealing something closer to his preferred model of government.

What is that model? It is one of enormous proportions. Vermeule uses Shakespeare to frame his vision: “O, it is excellent / To have a giant’s strength, but it is tyrannous / To use it like a giant.” This vision of a strong central government influences Vermeule’s definition of subsidiarity. Vermeule favorably quotes Johannes Messner, a twentieth century Austrian priest and scholar of natural law, who concludes that “[w]here the will to moral responsibility in a society shrinks, the range of validity of the subsidiarity principle contracts” and “[i]n such cases, even dictatorship may be compatible with the principle of subsidiarity.” Vermeule then goes on to explain why this would be the good “carefully cabined” Roman kind of dictatorship.

Maybe that caveat makes you feel better, but I am still a bit concerned. Looking around the current political landscape, I do not see many politicians whom I would trust to use a giant’s strength with the mature self-control of a gentleman. I see too many who would act like an ogre.

This dream of common good constitutionalism seems to have little that links it to the actual Constitution that was crafted by men often more loyal to their individual states than a broader union. They were threading the needle between fears of British despotism and their recent experience of an impotent Articles of Confederation. The resulting system of checks and balances that the Founders created bears little resemblance to the powerful executive of Vermeule’s imagination. Vermeule sets all that history to the side because the book is really about how Vermeule would start from scratch if he could.

In a world of rule for the common good, Vermeule asserts that “the Court’s jurisprudence on free speech, abortion, sexual liberties, and related matters will prove vulnerable.” That all seems to depend on just who is defining the common good. While Vermeule persuasively argues that visions of the common good beyond the current liberal focus on individual autonomy are quite possible, he is less effective in demonstrating how that autonomy-centered definition might be taken off the table.

A world where vacuous statements like “[t]he conditions that allow communities to live in accordance with justice define the legitimate ends of civil government” are the only guardrails for a powerful executive is a world that I would rather not see. Vermeule is right to reintroduce the classical tradition as an important factor influencing the founding period, but other influences were there as well. Together, they all produced a document that was meant as more than a list of suggestions highlighted by a powerful General Welfare Clause.

Constitutions are adopted to limit the prerogatives of leaders, and this strategy is seen as a benefit to the common good by those who view human nature as far from inherently virtuous. Similarly, originalism is designed to limit the flexibility of judges. Vermeule is right to remind us of the forgotten treasures of classical law, and he is correct to critique systems that have produced some of their worst results at some of the most consequential moments. Flawed humans like Justice Gorsuch have certainly succumbed to the temptations of power.

Yet, the solution Vermeule proposes does not show itself less likely to fall into these same traps. By reducing the value of words and, hence, constitutions, common good constitutionalism seems even more likely to veer into the dangerous realm of personal preference-based decision-making. Many figures could be clothed by the “loose fitting garment” that Vermeule has tailored. Before he removes the constraints of constitutionalism, perhaps he should rehear his own 2016 words of warning that as “culture sours and curdles, so will the law.”