This is is part of a Law & Liberty symposium on Adrian Vermeule’s Common Good Constitutionalism.
In the case of Adrian Vermeule’s Common Good Constitutionalism, one could say that the specialist’s tail wags the disciplinary dog. Vermeule is the Ralph S. Tyler, Jr. Professor of Constitutional Law at Harvard Law School, specializing in administrative law. And in less metaphorical terms, he is that not-infrequent (but still dismaying) figure, a Constitutional scholar who disdains his discipline’s charter document. Instead of being a defender of “the formal Constitution,” he is a proponent of what he calls “our small-c, operative constitutional order.” The “operative constitution” has historically evolved and is now “executive-centered.” Thanks to History, and to those who’ve gone along with it,
the American small-c constitutional order has come to feature broad deference to legislatures on social and economic legislation and broad delegations from legislatures to the executive. In operation, moreover, lawmaking is effectively centered mainly on executive government, divided in complicated ways between the presidency and the administrative agencies (including both executive agencies and independent agencies).
In other words, History has produced the Administrative State. Vermeule aims to justify it with his Common Good Constitutionalism. Instead, he displays historicist supineness, tendentious scholarship, and political utopianism.
Vermeule’s argument has four steps or components. First, he bows before History; secondly, he introduces a normative concept, “the Common Good,” to justify what History has wrought; third, he critiques what he says are the two main interpretive alternatives contending today, progressive “living constitutionalism” and conservative “originalism”; and fourth, he claims that he is not grafting an alien branch on to our constitutional tree, but is returning to its original roots, which are to be found in an older tradition of legal and constitutional thinking.
Vermeule’s Updated Classical Vision
Vermeule calls this older tradition jus commune legal theory, or “classical law” for short. It is a complex combination of morality and law, which includes “background commitments” to “the jus gentium (the law of nations or peoples) and the jus naturale (natural law).” Its chief contention is that law (and indeed all political action) ought to be oriented to the common good—legitimated and judged by it. Because “the classical law [was] the fundamental matrix for the thinking of the whole founding generation,” “[t]he classical tradition should be explicitly recovered and adopted as the matrix within which American judges read our Constitution, our statutes, and our administrative law.” Vermeule goes so far as to affirm that “if anything has a claim to capturing the “original understanding” of the Constitution, this does. The classical law is the original understanding” (italics in the original). James Madison and John Marshall may beg to differ, but one would never know that from reading Vermeule.
It is not just the “American judges” mentioned above who should operate this way, but all public officials. If they do, America will “flourish” as a political community, its members’ rights will be properly grounded (but also limited, sometimes severely, by their “ends” or purposes), and the manifold problems raised by a complex modern society will be effectively addressed. This importantly entails the provision of economic security and environmental health and safety. (As a result, property rights will become a second-order reality and concern. Kelo v. The City of New London is a harbinger of “takings” to come.)
Nor will it only be America’s Good that will be sought. The Common Good that Vermeule advocates embraces “the community of peoples and nations.” American legislation, administration, and jurisprudence will have to be (re)oriented accordingly. Pope Francis’s encyclical Laudato Si’, “On Care for Our Common Home,” referenced twice by Vermeule, provides a sketch of the more expansive governmental vision and internationally oriented activity that it warrants.
Such is the vision Vermeule offers to the reader in lieu of anything purporting to be adherence to the Constitution with its superannuated principles of separation of powers, federalism, and limited government. Perhaps dazzled by his own radiant vision, Vermeule shows himself remarkably sanguine about Government’s goodness and quite insouciant about the untoward possibilities inherent in such a Common Good-empowered State. His own endorsement of vaccine mandates and lockdowns is a hint of how far he thinks the State is authorized to go in the name of public health. Such policies caused an enormous loss of jobs and social mobility and created a set of second-class citizens, to say nothing of the abuse inflicted upon school children by politicians in cahoots with teachers’ unions. What policies might he endorse in the name of economic security, environmental protection, or public morality?
The Common Good is nothing if not empowering. Any serious concern that tyranny could operate in the name of the Common Good does not make an appearance in these pages. (In an earlier book, he derided such concerns as “Tyrannophobia.”) Put another way, two things that his retrieval of the classical tradition does not include are human fallibility and sinfulness.
With equal insouciance, Vermeule declares that “[d]espite the high volume of chatter in originalist and libertarian circles, the federal government for all intents and purposes has acquired by prescription, over time, a de facto police power.” De facto is of course not the same as de jure. Perhaps in other contexts, Vermeule would acknowledge the validity of the distinction. But not here. He does know (and acknowledges) that as late as 1870, the Supreme Court explicitly denied that the federal government constitutionally possesses the equivalent of the states’ police powers. But over the course of three paragraphs, he lovingly sketches the erosion of that constitutional limit and the concomitant empowerment of the national government. History is once again a beneficent agent. At sketch’s end, reprising a phrase employed above, he notes that “[o]ver time, the difference between state police power and federal enumerated powers became more theoretical than real.” “Over time” does a lot of work in his argument. The passage of time and its solidification into History serves as a magic wand that waves away mounting constitutional scruples.
Aware that there might be something problematic in this historicist procedure, Vermeule provides a justifying “account”: “I offer an account that aims to put our constitutional order, including the administrative state, in its best possible light, given our whole history—not merely our most recent history.” The administrative state has happened, therefore it must be justified. Here “theory” provides its service to History. “This book is as much a work of memory and recovery as of theory.” “[A]s of theory” means that theory is equally required to do the work of justification. This he finds in “the core theoretical insights and jurisprudential principles of the classical legal tradition,” which center around and constantly repair to “the Common Good.” According to Vermeule, the double light of theory and history “yields a better interpretation of the past and the present of our operative constitutional order” than anything else currently on offer.
The Expansive Common Good
The administrative state is a historically necessitated and justified “determination” of the Common Good. Before the “determination,” however, we need the thing. Here, too, it turns out that history, both intellectual and actual, has played a decisive role in the (developing) understanding of the Common Good. In shorthand, one can summarize the development in terms of three names: Ulpian, the Roman jurist, Thomas Aquinas, the great medieval scholastic, and Giovanni Botero, the originator of “the ragion di stato tradition” in modern times, along with an amorphous authority, “modern conditions.” It is true that the latter is more history than theory.
The modern contributor, Botero, proves decisive because of the specifications (additions) he contributed. “The ragion di stato tradition . . . spoke of the bonum commune as comprising, more specifically, a triptych of ‘justice, peace and abundance.’” According to Vermeule, “[t]his became . . . the standard list of the polity in which it is possible to live honestly, to do no harm to others, and to render to each his due” (the latter elements come from Ulpian). It’s not clear from Vermeule’s account, however, whether or how this seventeenth-century Spanish Catholic’s concept impacted Anglo-Protestant or American jurisprudence. Be that as it may, they are used by him to directly justify the administrative state: “the administrative state is today the main locus and vehicle for the provision of the goods of peace, justice, and abundance central to the classical theory.”
To the list of proper names above, one must add Vermeule himself. The amorphous “modern conditions” need their own spelling-out, and Vermeule takes it upon himself to “extrapolate [the reason of state tryptich] to modern conditions to include various forms of health, safety, and economic security” (italics in the original). Like Topsy, the Common Good keeps growing.
It is true that Vermeule declares that “I also elicit from the tradition the key principles of solidarity and subsidiarity” (italics in the original). However, the top-down, or top-heavy, administrative state takes clear precedence in his historically evolved American schema. As we just saw, it is armed by him with an expansive set of objectives to which it must attend, and to which it can appeal, in its ruling actions.
Playing Cat-and-Mouse with Natural Rights
Vermeule begins his book with a ringing declaration that “American public law suffers from a terrible amnesia.” He thus makes historical recollection and accuracy his initial criterion. Since what’s sauce for the goose is sauce for the gander, it can and should be applied to him. Here he falls short, blinded by his commitments and agenda. As Peter Berkowitz put it in an earlier review, “Vermeule tenderly uncovers and dusts off lost treasures of our jurisprudential inheritance while scornfully burying other precious jewels and gems of our constitutional tradition.”
Aware of them, he wants to iron out tensions in the founding materials between what he calls an older jus commune view of law and a modern natural rights-based understanding. Among other things, the former envisaged political community in light of “the inherently political and social nature of man,” a view Vermeule contrasts with one that is “more social-contractarian in its premises,” that is, one that “tended to emphasize natural rights and saw human nature as intrinsically individualistic rather than social and political.” To do so, he gives the former the whip-hand in their relationship and inflates it considerably beyond its founding-era understanding and limits.
Indeed, he initially goes well beyond smoothing out tensions, declaring (as we saw above) that “the classical law [was] the fundamental matrix for the thinking of the whole founding generation.” To this claim, one should contrast Michael Zuckert’s notion of “the natural rights republic” as an “amalgam” of elements with a natural rights core; Thomas West’s detailed exposition of The Political Theory of the American Founding along the same lines; and Robert Kraynak’s construal of “The American Founding as Blended Scotch” containing a number of intellectual sources, including Protestantism. All of these accounts individually and collectively expose the tendentiousness of Vermeule’s opening claim about the founding era.
Things, however, are more complicated (as they often are with Vermeule). He eventually acknowledges the centrality of natural rights in the founding period. He does so, however, in a less-than-conspicuous way, in an endnote. Citing Edmund Waldstein, O. Cist., he concurs that “the [founding] era was already in transition from a classical conception of law and rights to a modern liberal conception.” This acknowledgment relegated to an endnote indicates that Vermeule is aware of an important shift in legal and constitutional thinking occurring in founding-era America and that he doesn’t want to think it through. Novus ordo seclorum isn’t allowed to enter the discussion, much less set the tone.
But even the belated acknowledgment doesn’t fully capture Vermeule on this important point, which concerns the moral-political “ends” of the new American republic (see just below). When it serves his purposes, he acknowledges and even trumpets the founding-era natural rights form of political community. His go-to instance is blasphemy laws. Here was a conspicuous limit on freedom of speech in the founding era (and well beyond.) In this connection, Vermeule cites a scholar, Jud Campbell, who “shows that judicial review was sharply limited, not as a contingent matter, but by the very terms of the natural law and natural rights theories themselves.” Campbell writes:
[W]hether inherently limited by natural law or qualified by an imagined social contract, retained natural rights were circumscribed by political authority to pursue the general welfare.
Here, Vermeule would leave the impression that the two great sources of political morality in founding-era America, natural law and natural rights, led to the same conclusion, that “the general welfare,” capaciously understood, was the lodestar of American politics and jurisprudence. Well, yes and no.
The Declaration’s Dialectic of “Ends”
It’s telling that Vermeule mentions the Declaration of Independence only once in his book (and this by-the-bye) and the original state constitutions likewise, only once and in passing. These documents, however, as authoritative “expressions of the American mind” (Jefferson’s phrase), should be given considerable weight in whatever account one gives of the founding generation’s political and legal fundamentals. They show the centrality of natural (“inalienable”) rights in the founding-era conception of the common good and, therefore, a certain dialectic between the claims of natural rights-liberty and proposals of the common good.
The Declaration nicely illustrates these dual commitments and dialectic. In words that were once well-known, it declares that
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.—That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,—That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
A rich passage, I note two things in it. First, is a dialectic of ends. The aim of Government begins with “to secure these [individual] inalienable rights,” but it ends with “their [the People’s] Safety and Happiness,” the alpha and the omega of a political community. Individual rights, popular safety, and popular happiness—all are within Government’s competence and concern. This trio sets up a dialectical triangle that will constantly be debated by a sovereign People and its representatives. In times of danger, individual rights may be circumscribed. In times of plenty, it may deem that a National Endowment for the Arts would contribute to their Happiness. At any time, it may judge that public education in civic rights and duties may conduce to the protection of rights and to the common weal. And so on. With this trio of ends, the broad terms of American debate are set and unleash a constant back-and-forth among partisans of each. Welcome to democratic life in the fledgling republic.
Having noted this dialectical structure, one must also note that rights—inalienable rights—come first. They have a primacy and a divinely granted (“endowed by their Creator”) independence. In America, one starts with individual rights. Founding-era Americans would therefore both agree and disagree with Vermeule on the nature of rights. First, the agreement:
In this tradition, “rights” very much exist, but they are not defined in the essentially individualist, autonomy-based, and libertarian fashion today.
George Will’s and Randy Barnett’s reading of the Declaration is libertarian wish-fulfillment and a betrayal of the founding era’s substantive understanding of rights, which are grounded in nature and God, correlated to duties, and their employment measured by publicly shared moral criteria.
They would then agree and disagree with Vermeule’s introduction of justice into the discussion. He continues:
Instead “rights” are corollaries of justice, which is the constant aim of giving each man his due.
Justice as “giving each man his due” would ring true for the original Americans. But what’s due is, primarily, the protection and free exercise of his natural rights. For Vermeule, on the other hand, “the common good” (with the dictates of Ulpian’s “legal justice” and Thomas’s precepts of “natural law” at its core) is the primary criterion of justice, which determines (and limits) what is due, not an independent notion of natural rights. As we said, he wants to iron out a tension, rather than live dialectically with a variety of American commitments. His return to the founding is therefore more agenda-driven than dispassionate scholarship. Berkowitz was right.
A second point: In the Declaration, the structure of “Government” is a matter of foundational “principles” and “powers” organized in “formal” ways. More expansively, fundamental principles of governmental aims (“these ends,” “Safety and Happiness”) and construction (e. g., the subordination of military to civilian rule, the priority of legislative to executive power), delegated and organized powers, and constitutional “forms and formalities” (to use Harvey C. Mansfield’s phrase)—these are some of the essential features of the Declaration’s blueprint for constitutional construction. However, rather than following the Declaration’s lead to the Constitution to see how it determined these matters, Vermeule largely ignores the most important works and thought of the framing generation and substitutes for them History’s work, purportedly now justified by a grandiose conception of the Common Good. He is thus that oxymoron, a classical historicist. As for me, I prefer my classics, as well as my Constitution, straight.