Policing Common Good Constitutionalism

This is part of a Law & Liberty symposium on Adrian Vermeule’s Common Good Constitutionalism.

I fear the contingent and prudential judgments of Adrian Vermeule’s argument in Common Good Constitutionalism get in the way of what I take to be the centerpiece of his argument, which is understanding and justifying the use of “police powers” in American government. Recognized in thousands of U.S. court cases, the police power is the general legislative authority to advance the welfare of the people by legislating “in the interest of the public health, the public safety, and the public morals.” Despite being the central principle of state government power in the United States (more anon on the national government), and discussed in countless court cases, Americans of all stripes—even those whom one would think already know of these powers—are often surprised to learn the nature of the state police powers.

Vermeule’s discussion of government police powers, and the correlative ideal of the “common good” to which it is connected, is a welcome contribution. Americans are wont to rush past discussing appropriate uses of government power to focus on limitations of that power. It is useful to pause at the first step and ruminate on what government power is for—advancing the “general welfare” or “common good”—before considering the benefits and costs of limiting that power.

Vermeule states early on that the broad philosophical tradition of “common good constitutionalism” is consistent with various institutional forms and structures. I would agree. Curiously, then, later in the book, Vermeule rejects institutional forms and practices that are consistent with common good constitutionalism as though they were in principle inconsistent with the theory.

Police Powers and the Common Good

Vermeule provides a broad, if brief, discussion of the “common good” in law and politics. He correctly identifies a commitment of U.S. governments, both state and national, to implementing a broad form of this multifaceted tradition. We see this commitment in the telos of state police powers and in the commitment of the U.S. national government to advancing the “general welfare.”

Vermeule focuses attention on a broader historical and philosophical consideration of the common good, one that he argues came to the U.S. with the colonists. While Vermeule provides evidence for the existence of this tradition in later U.S. Supreme Court decisions, we can easily see this corporate commitment at work in the U.S. from the very founding of the nation. While the Declaration of Independence today is read as an individualistic document, many of the articulated principles and criticisms it advanced against the British King were broadly corporate principles and criticisms. The Declaration framed these arguments as unjust British barriers to the American colonists’ ability to provide for their common good.

Consider that many of the very first complaints the Declaration articulates against the King are not that he violated individual rights, but that he unjustly prevented colonial governments from taking legislative action necessary to the common good:

[1] He has refused his Assent to Laws, the most wholesome and necessary for the public good.
[2] He has forbidden his Governors to pass Laws of immediate and pressing importance . . .
[3] He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature . . .
[4] He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures.
[5] He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.
[6] He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise . . .
. . .
[8] He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.

So, too, earlier in the Declaration, the articulated principle that “it is the right of the people . . . to institute new government, laying its foundation on such principles and organizing its power in such form, as to them shall seem most likely to effect their safety and happiness,” is only an early recognition and articulation of the police power and its purposes (“safety and happiness”).

Even further, a central part of “freedom” itself as understood by Americans in their first century included legislative action taken by the people’s representatives. As James Fenimore Cooper put it in the mid-1800s,

[I]t is a common error to suppose that the nation which possesses . . . laws that impose the least personal restrictions is the freest.  . . .   [N]o country can properly be deemed free, unless the body of the nation possesses . . . the legal power to frame its laws according to its wants.

This is a frank recognition of a positive, corporate dimension inherent in the American conception of liberty. Vermeule does not argue to recover this tradition merely as tradition. Rather, he seeks to re-articulate the value and justification for this tradition.

Despite their centrality in court decisions on legislative constitutionality, the category of “police powers” is nonetheless little-known outside of the legal profession. For example, because of the Covid-19 pandemic, I integrated court cases discussing state police powers in several of my undergraduate and graduate courses. Students of all stripes commented in response that they had never heard of the concept before and were surprised at the extent and scope of the power. I expect that what is true of my students is more broadly true of American society. Vermeule’s discussion of police powers and the common good is a useful, even necessary discussion for Americans today.

Limitations of the Idea of the Common Good in Vermeule

For all the usefulness of Vermeule’s discussion of the common good, there are limitations also to his discussion, limitations both theoretical and practical. Theoretical limitations result mainly from Vermeule tying his discussion of the common good to what he calls a “classical legal tradition.” Here I think there is more heterogeneity than Vermeule lets on, and it is unclear that American legislatures and judges understand “common good” as narrowly as Vermeule defines the idea.

For example, in his theoretical discussion, Vermeule repeatedly comments that

In the classical account, a genuinely common good is a good that is unitary (“one in number”) and capable of being shared without being diminished. Thus it is inherently non-aggregative; it is not the summation of a number of private goods . . .

There are a couple of problems with Vermeule’s assertion. Not least that it is unclear that the American legal sources he identifies subsequently are actually drawing on this distinctive claim.

On the one hand, perhaps the point of his repeated emphasis that the common good is unitary and non-aggregative is to respond to a libertarian reductionism that often denies even the existence of “public goods.” Vermeule seems to be pointing to a concept that economists term non-rivalry in consumption. That is, goods in which one person’s consumption does not diminish what remains for an additional person to consume. Preventive nuclear strategy is a classic example of non-rivalry of consumption: That a nuclear umbrella protects my home from attack does not leave less protection for the houses next to mine.

The thing is, though, that non-rivalry in consumption does not in the least mean that the public good is non-aggregative. The value of the good is the aggregate of the value across all individuals; it is the summation of the value across individuals, even though it is not a private good. Non-rivalry does not imply non-aggregation.

Thus, for example, Jacques Maritain, presumably drawing on and articulating this same tradition in his book The Person and the Common Good, points out that “the common good” includes such pedestrian objects as:

The Collection of public commodities and services-the roads, ports, schools, etc., which the organization of common life presupposes; a sound fiscal condition of the state and its military power; the body of just laws, good customs and wise institutions, which provide the nation with its structure . . .

These are the everyday objects of what economists call “public goods,” and constitute a critically important part, even while not exhausting, the content of the common good. It seems to me that Vermeule’s conception of “the” common good, like Maritain’s, assumes a unique correspondence between individual and social optima that do not exist even when material conditions are satisfied. Because of heterogeneity of preferences and circumstances, common good constitutionalism cannot produce the social or political harmony that its advocates sometimes seem to promise.

Concerning even higher goods, however, there remains a reservation about the role of the government in providing these. Vermeule writes that “In the classical theory [of the common good], the ultimate genuinely common good of political life is the happiness or flourishing of the community, the well-ordered life in the polis.” The question of the relationship between individual and community—and the reality of that community—is critical.

As I argued recently, for example, among earthly institutions, only the Church has any real claim to organic unity, that is, to being more than the aggregation of the individuals who are part of the institution. This is because union in and with the Church is real union with the body and soul of an actual person, Jesus Christ. Hence, the claim of the Christian Scriptures that the Church, the Body of Christ, is the true polis. As French philosopher Jean-Louis Chretien argued regarding all other earthy institutions, “their bodiliness is incomplete and to a degree a lie.” It is unclear that Vermeule provides a coherent account of the relationship between individual and community in his seeming insistence on the reality of non-ecclesial corporate bodies.

Is there a reasonable case under which the precepts of common good constitutionalism might commend hardwiring a division between centralized and decentralized administration into a constitution?

Lochner v. New York

Early on, Vermeule underscores that common good constitutionalism is only a “framework” and “not a blueprint or a set of position papers.” Applications then come through prudential judgment in which even those who agree with the perspective may disagree, “even bitterly.”

It is then something of a surprise that Vermeule devotes the bulk of his book to detailing specific positions on judicial review standards, federalism, originalism, and more. All of these draw on his own contingent, prudential judgments. Mind you, these are important topics, and Vermeule’s prudential judgments are of interest. But Vermeule does a disservice to common good constitutionalism by claiming his contestable prudential judgments flow from direct application of the theory.

For example, in treating the (in)famous case of Lochner v. New York, Vermeule argues that the majority decision was a “betrayal, in bad faith, of the common good framework.”

To be sure, Justice Harlan’s dissent, which Vermeule commends to the reader (as would I) actually uses the words, “the common good,” and defers to the legislative judgment of the New York Legislature. Yet Vermeule ignores how the very genesis of economic substantive due process can be straightforwardly derived from the principles of common good constitutionalism, even as Vermeule himself presents those principles.

Earlier in the book, Vermeule discusses how “common good constitutionalism” stands at odds with factious uses of government power. Political “factions,” as famously discussed in Federalist 10, use government power to enrich or promote the interests of their narrow group rather than the broader interests of society. As such, legislation that reflects the influence of “faction” is necessarily inimical to promoting any version of a common good.

Contrary to Vermeule’s narrative regarding the motivations of the majority in Lochner (which is the conventional narrative), Howard Gillman demonstrates in his book, The Constitution Besieged: The Rise & Demise of Lochner Era Police Powers, that the majority view was not a doctrinal innovation, but rather had been percolating in state courts at least since the Jacksonian era.

More significantly, the central concern motivating heightened review of ordinary socio-economic legislation was the legislative enactment of partial and factious legislation. That is, the motivating concern for this form of heightened judicial review was precisely to advance what Vermeule articulates as an important goal of common good constitutionalism.

To be sure, we can argue about the usefulness and limitation of heightened judicial review as a means to smoke out factious legislation. Yet the Lochner Court’s application of a form of intermediate scrutiny only requires that governments identify legitimate governmental objectives and provide evidence that the law is substantially related to achieving those objectives. Even in Lochner, there was a straightforward legislative response to the charge that the bakers’ law was mere rent-seeking: The legislature only needed to enact maximum hour limitations that included all vocations rather than enact protections limited only to the narrow vocational class of bakers.

Even then, critics of Lochner tend to forget that most legislation was not challenged during the era, and of the legislation that was challenged most was sustained despite Lochner’s doctrine.

Irrespective of one’s prudential judgment of the modest institutional checks and balances represented by Lochner-era judicial review, the now-rejected project was hardly a “bad faith betrayal” of the aspirations of common good constitutionalism. It was rather an attempt to embody them.

Federalism and the Common Good

Similarly tendentious is Vermeule’s discussion of federalism. Contrary to the U.S. Supreme Court which has repeatedly held that the U.S. national government does not hold police powers—only the states do—Vermeule argues that, as a historical matter, the national government should and does hold police power. As a result, state government policy jurisdiction should be allocated on the basis of case-by-case congressional determination rather than as a result of constitutional hardwiring.

The irony is that Vermeule expressly endorses the value of subsidiarity as a key commitment of his common good constitutionalism (CGC). It seems to me a reasonable question a CGC institutional designer might ask when designing a constitution is this: Is there a reasonable case under which the precepts of common good constitutionalism might commend hardwiring a division between centralized and decentralized administration into a constitution?

Consider the possibility that, during the founding era, the experience under the Articles of Confederation provided evidence that in some, but not all, classes of policy state-level incentives failed to induce states to provide the levels of coordination or cooperation needed to achieve national-level interests.

Those areas that experienced failures of state-level cooperation or coordination were subsequently nationalized. Policy areas that did not face pathological incentive structures were left to the states. This latter move was not simply a concession to state decision-making, it represented a policy optimum: local decision-making for appropriately local-level policies. (A second nationalizing principle in the U.S. Constitution provides national authority to guarantee uniform republican governance across the states. This guarantee was subsequently strengthened by the Civil War Amendments.)

This argument is not one simply that different states have different circumstances and so should have decentralized policies. They do, of course, but the argument for federalism is more than that. As Vermeule correctly points out, decentralized policies and administration can be endogenously generated by a centralized authority. More than different circumstances across the states, different state citizens, even today, often have very different policy preferences even when they share the same circumstances. Except when special conditions exist—pathological incentive structures across states or threats to republican equality—it is a good thing to let different states implement different policies reflecting the different policy preferences of their citizens.

So why might a common good constitutionalist opt to hardwire this division into a constitution? There is an anthropology—one shared and recognized by the tradition of Catholic social thought that Vermeule frequently cites (and in Christian theology more generally) — in which, because of the Fall of humanity into sin, humans are inclined to accumulate power to themselves even when doing results in socially suboptimal outcomes. A constitutional designer—even one, or especially one committed to common good constitutionalism—in recognition of the human inclination to accumulate power for its own sake, might seek to make it harder to indulge this inclination by hardwiring federalism into a constitution.

Reading the Constitution

There are other aspects of Vermeule’s argument in Common Good Constitutionalism that seem similarly under-argued (despite the heat that Vermeule devotes to them). For example, while I consider myself an originalist—a “textualist”—I embrace what seems to be a more modest form of it than is often the case. I take the heart of textualism to derive from a moral injunction to read legal provisions as “honestly“ as we seek to read other things.

This seems to me to be a commonsense way to interpret legal texts. We read them as we read other things, with an eye to understand what the text meant when written. As Howard Gillman—no originalist—observed,

From the time of the founding through-out the nineteenth century, there was a consensus in court opinions and legal treatises that judges were obligated to interpret the Constitution on the basis of the original meaning of constitutional provisions.

To be sure, I also think that conservatives usually freight “originalism” with a greater interpretive load than it can carry. But then, unlike many conservatives, and unlike Vermueule, I don’t regard originalism as a “constitutional theory.” It is a theory of how to read statutes and constitutions—that is, read them honestly. But a lot more needs to be added to turn an ethical maxim of “honest reading” into a fully freighted constitutional theory.

Vermeule focuses attention on how citizens corporately seek to advance the common good through their governments. That is a useful and necessary discussion, one that is too often overlooked or moved beyond too quickly. I fear, however, that because he devotes so much of the discussion in his book to his own contingent and prudential judgments—judgments that at best only spuriously derive from the principles of common good constitutionalism—the book will retard the case for common good constitutionalism rather than advance it.