This is part of a Law & Liberty symposium on Adrian Vermeule’s Common Good Constitutionalism.
Adrian Vermeule’s Common Good Constitution is a bracing, bold, and well-written defense of what he calls common good constitutionalism, with a corresponding assault on originalism. But for all its audacity and creativity, Vermeule’s theory will remain a minority view on the right for years to come. The originalist project it challenges has too much momentum to be derailed. The Supreme Court has a majority of originalist justices, and a considerable majority of the small band of legal academic conservatives are originalists. Moreover, the substantive results he favors—unlimited power in the federal legislature without any substantial restrictions on the administrative state—are indistinguishable from the left’s program for the structural constitution and remain anathema to the right.
This likely failure of common good constitutionalism is a good thing, because Vermeule is not persuasive. Ironically, to the extent that his theory affects the judicial landscape, it is likely to strengthen originalism by highlighting to the left the dangers of morally infused judging and by encouraging originalists to consider whether they have overlooked some background principles at work at the Founding that can help resolve constitutional ambiguity and vagueness within the framework of original meaning.
The Consistency of Originalism with the Common Good
Vermeule argues that all law must aim at the common good. For him, the best example of the law ordered to the common good is the civil law, where it was called ius. The common good is a unitary good enjoyed by society as a whole, not a summation of the fulfillment of individual preferences. While Vermeule himself may believe that the common good is the final end of society, he is careful to make clear that this belief is not necessary to his defense of common good constitutionalism. He recognizes the position of those, like Robert George, who also posit the common good as a purpose of politics but see it as an instrumental good—the indispensable foundation for pursuing individual and family flourishing. Thus, it would be unfair to accuse all forms of common good constitutionalism of subordinating the individual to the collective.
Although at times Vermeule implies otherwise, nothing about the general proposition that the law must aim at the common good is incompatible with originalism. For instance, some advocates of originalism believe that the approach is justified only if the Constitution is a presumptively good one, and that goodness surely includes the production of public goods like peace and security that are enjoyed by all.
Originalism thus does not necessarily contest the claim that the Constitution aims at the good. Instead, it contends that the constitutional interpreter advances the common good by following the public meaning of the Constitution at the time of enactment, thus indirectly rather than directly pursuing the common good. This view of the appropriate role morality of the judge, for instance, may reflect the view that giving free rein to popular decision making in the constitution-making process is more likely to arrive at the common good than permitting judicial discretion in the constitutional interpretive process.
Vermeule himself acknowledges that even in a political system well-ordered to the common good “it does not follow that each official or institution, in the system, must make unfettered judgments about the common good for itself; the common good itself includes role morality and division of functions.”
This is a sound insight, and one very much in keeping with some justifications for originalist constitutional interpretation. The people make the fundamental, enduring decisions about the framework for promoting the common good within the disciplined, supermajoritarian process of making the Constitution, because that is the best way of creating a common good framework. That beneficial process in turn creates a constitution with many avenues to pursue the common good in particular circumstances. The states have few restrictions in advancing visions of the common good, which, if tested and popular, can be copied by other states. The federal government has substantial, though limited, power to do the same. And if those avenues prove inadequate, the disciplined process of realizing the common good by changing the Constitution through Article V remains available. The judges’ role is to maintain the precise boundaries of a system already established.
To be sure, Vermeule may disagree that some of the results reached reflect the common good, but to argue against originalism on this ground, he must show, as he has not, that a system in which judges (or legislatures freed from the strictures of the Constitution) more directly seek the common good is more likely to achieve the good than one in which the constitutional boundaries are protected. That is a tall order, particularly when the intelligentsia which specializes in boundary crossings is so utterly opposed to so many aspects of Vermeule’s vision.
Problematic Reliance on Dworkin
Another aspect of Vermeule’s argument is incompatible with originalism, though: His theory of legal interpretation holds that interpreters have no choice but to resort to moral concepts like the common good to interpret a legal text. The most striking revelation of this book is that Vermeule is an open acolyte of Ronald Dworkin, the famous left-liberal Oxford professor of jurisprudence. It is Dworkin’s theory of interpretation, not the concept of the common good, on which Vermeule’s theoretical critique of an ‘incoherent’ originalism fundamentally depends.
Like Dworkin, Vermeule argues that “the public meaning” to which originalism is committed is fatally ambiguous: “In one version of originalism, meaning is based on expected applications: on another meaning is based on the principles embodied in semantic content.” Vermeule provides the example of the phrase “cruel and unusual punishment” that suffers from this ambiguity. He argues that interpreters have no way of deciding whether the phrase just refers to a particular set of punishments that the Framers expected it to rule out, or to a principle against “morally unjustified punishment,” which would require appeals to the common good.
But Dworkin’s dichotomy between expected applications and semantic principles is false. Expected applications do not constitute the meaning of words, but sometimes they are the best evidence of meaning, including the meaning of words meant to capture principles. As Mike Rappaport and I have discussed, words, particularly abstract or moral ones, are slippery things and dictionary definitions do not fully capture their meaning in the context in which they were enacted. Recovering that context is essential to fixing their public meaning, and the recovery of context can be enhanced by considering how the words would have been applied to the concrete circumstances in the sociopolitical usage of the day.
The relevance of expected applications does not mean that every application needs to be followed. Consider an analogy: We employ regression analysis to show the relationship between different phenomena as shown by real-world data. That relationship is symbolized by a line that minimizes the distance of the various data from the line. The data can be conceived as the expected applications of a legal provision, and the line as a principle to which those applications point. We use expected applications to recover the principle that was embraced by the Framers and fix its level of abstraction. It does not follow that the interpreters must embrace the result of every expected application, particularly those that seem incongruent with the principle inferred. The data that help define the line, after all, are not the line itself.
Vermeule’s reference to the Cruel and Unusual Punishment Clause shows another weakness he shares with Dworkin—an assumption that, even without reference to expected applications, the words of the Constitution had a vague, abstract meaning. To be sure, the Eighth Amendment’s Cruel and Unusual Punishment Clause is often seen as the paradigm example of a vague provision, inviting the ordinary reader to determine whether a punishment is prohibited by employing his or her own intuitions of what is cruel.
But John Stinneford has shown that the original meaning cannot be what Vermeule claims it can be—a vague principle against morally unjustified punishment. The Clause had a more precise legal meaning that provides a much clearer standard. Specifically, the word unusual was in law used to mean “contrary to long usage.” Cruel also had a long-standing legal meaning suggesting standards that are significantly disproportionate to culpability. This interpretation gives a much more determinate meaning to the Eighth Amendment, making it clear, for instance, that the death penalty for murder is not currently unconstitutional without any resort to untethered moral judgments.
Vermeule’s blithe reference to the Cruel and Unusual Punishment Clause as a paradigmatic case of vagueness without consideration of recent scholarship illustrates a weakness of the book. While he vigorously critiques originalism, he fails to joust with theorists who have provided responses to his analytic objections or to practitioners of originalism who dispute the assumptions underlying his examples. Vermeule writes as a prophet trying to start a popular movement rather than a scholar engaged with his professional colleagues.
Similarly, his attack on originalism in the Supreme Court does not engage with applied originalism as a whole, cherry-picking three opinions that he claims purport to be originalist but show that originalism is an illusion. But many critics of Bostock v. Clayton County and Chiafalo v. Washington are themselves originalists. (His third example, Seila Law v. CFPB was not essentially a case of first impression and thus full originalism was not practically on the table.) There is good and bad originalism, just as there is good and bad law and economics. A few bad opinions do not discredit the theory, particularly when other opinions that Vermeule does not discuss, like Justice Antonin Scalia’s concurrence in NLRB v. Noel Canning, can provide models of the theory successfully applied. And, of course, we might well count against Vermeule’s theory examples where the Court thought it was aiming at a version of the good, like Roe v. Wade, but fell woefully short.
Not coincidentally, Bostock and Chiafalo share a willingness to read statutes and the Constitution in an abstract, even Dworkinian, manner. For instance, one lower court federal judge noted that Bostock read Title VII as abstractly and without regard to expected applications as a computer code: “In the Bostock majority’s view, language codified by lawmakers is like language coded by programmers. ”
But this is a mistaken view of natural language. Law is emphatically not a computer code, because it is not self-contained. Context is often the key to understanding. This fundamental proposition for legal interpretation is not surprising, because linguistic communication depends on the presuppositions and contexts that a speaker or groups of speakers share with their listeners. In this sense, communication in natural language is the opposite of a computer code where nothing depends on looking at the context outside the code. Interpreters need to recapture that context. Only then can one understand what they were asserting. In challenging cases of interpretation, what separates good opinions from bad ones is the correct appreciation of the specific context of enactment.
Vermeule argues for a single overriding context—the common good. But that context is too general to do much work in fixing meaning. He then neglects the more concrete contexts that judges at their best use to fix meaning.
Ironically, the most significant practical effect of Vermeule’s book will likely be to advance originalism. First, it offers a warning to the left that appeals to infuse legal interpretation with moral exhortation can as easily be used to support a right-wing as a left-wing agenda. It positions originalism as a centrist philosophy of legal interpretation.
Second, it is true that of the relatively few constitutional law professors on the right, a very substantial majority are libertarian or libertarian-leaning. This disproportion may have cast a libertarian gloss on academic originalism, potentially influencing the course of law. One of the most interesting parts of Vermeule’s book is to argue that there were background natural law principles at the time of the Founding. Unfortunately, this is an underdeveloped part of the book, as he references the work of others in endnotes rather than painting a coherent picture of how these principles operated in legal interpretation. As Judge Pryor observes, Vermeule also does not address the large number of early decisions that proclaimed their fidelity to the text as it was understood at the time of enactment.
If, as I suspect, specific natural law principles were not used to supplant text, but to help eliminate ambiguities and reduce vagueness, their introduction to interpretive debates may prove to be an alternative background principle to some other readings of the Constitution, like the presumption of liberty offered by the libertarian Randy Barnett. That contestation will be all to the good, because originalism is most likely to capture the public meaning of the Constitution when people of diverse ideological priors confront and debate the empirical reality of historical evidence.