Uncommonly Bad Constitutionalism

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

When my son was two years old, he liked to play a game where he would walk out of his room with a blanket over his head and pretend that we could not see him. The game was funny except that he played it when he was trying to sneak out of bed after bedtime. He genuinely thought he was disguising himself but also vainly hoped that our laughter would earn him a few extra minutes of playtime. Unfortunately for him, it never did. In Common Good Constitutionalism, Adrian Vermeule plays the same game. He hopes to disguise his work as a sober manifesto for abandoning originalism in favor of a kind of reactionary substantive due process. Everyone can see through the disguise, so he hopes that a favorable response to his promised policy outcomes might earn him more of a hearing. Serious readers should not entertain such an idea. They should send him straight back to bed.

The core ideas of this book first appeared in March of 2020 in an Atlantic essay titled “Beyond Originalism.” Vermeule’s argument is that originalism and living constitutionalism are forms of legal positivism lacking the moral framework that, until recently, had been essential to American jurisprudence. This moral framework can be found in the “classical legal tradition” starting with Roman law, and moving through the legal theory of St. Thomas Aquinas, to the ragion di stato of sixteenth-century Italian scholar Giovanni Botero, and finally, to the framers of the American Constitution. Throughout these stages, regimes and their leaders understood law to be linked to a common good that had a metaphysical authority prior to any positive law. Laws were often silent on some issues, and where these silences occurred, legitimate authorities could fill in the gaps in a way that served the metaphysical authority.

For Vermeule, legitimate legal authorities, not citizens, have the default authority to decide the common good. He says that the main aim of his theory is that “the ruler has both the authority and the duty to rule well” and continues:

A corollary is that to act outside or against inherent norms of good rule is to act tyrannically, forfeiting the right to rule, but the central aim of the constitutional order is to promote good rule, not to “protect liberty” as an end in itself. Constraints on power are good only derivatively, insofar as they contribute to the common good; the emphasis should not be on liberty as an abstract object of quasi-religious devotion, but on particular human liberties whose protection is a duty of justice or prudence on the part of the ruler because protecting them promotes the flourishing of the community.

Hence, where the law is silent, citizens do not retain the right to act at their own discretion but rather must await rulings from legitimate authorities on whether to act. These authorities have to determine if any individual action serves the common good. In more concrete, contemporary terms, this means that Vermeule regards judges and the administrative state as keepers of the common good who oversee the activities of citizens who are free only insofar as the judicial and administrative states allow them to be—for their own good.

The problems with Vermeule’s argument are numerous, but I will confine myself to three. The first is the quality of argumentation. The second is his use of history. The third is his interpretation of the common good as it pertains to regimes and the law. I will leave his treatment of case law and theories of judicial interpretation to other reviewers.

Issues in Sourcing

In the introduction to his work, Vermeule explains that he opted to write a short statement of common good constitutionalism rather than a lengthy tome examining every possible detail. He reminds the reader of this choice a few times, excusing himself from fleshing out details of his argument. By the end of the book, however, his explanation begins to look like an excuse for failing to do what was necessary to argue his position. And the issue seems to be one that affects all of Vermeule’s solo projects, as Michael S. Greve noticed in his review of Vermeule’s Law’s Abnegation. For example, Vermeule often drops threads of his argument and refers the reader to other chapters for their continuation. Sometimes, these are useful signposts for readers, but they are so frequent as to indicate that Vermeule struggled to keep his arguments organized according to the stated outline.      

As for sourcing, Vermeule has several problems.

First, he indulges too heavily in self-citation. Vermeule does not merely direct the reader to more detailed argumentation but regards his own arguments as authoritative so often as to indicate that he might also be alone in taking these positions. If so, then it might be that he has fewer scholarly allies than he would like his readers to suppose.

Second, other sources come from posts by his colleagues at the Ius et Iustitium blog that he founded and operates. These posts are not really vetted by any scholarly standard. The same goes for his use of entries on the integralist website Josias, where Vermeule also contributes. As useful as these are for discussing ideas, they are misplaced in a book with scholarly aspirations, most egregiously when he cites an (apparently anonymous, exclusively online) integralist writing under the pen name Rafael de Arízaga. The impression is unfortunately of a book that is too “online” and weakly supported.

Finally, Vermeule’s personal interests interfere with the kind of arguments he wishes to make. His use of Joseph de Maistre, Louis Veuillot, and Carl Schmitt are all out of place, as they are hardly bearers of any classical legal tradition and bring with them all kinds of baggage—from Maistre’s lifelong devotion to western esotericism, to Veuillot’s fanatical anti-Semitism, to Schmitt’s Hobbesean conception of sovereignty by which he favorably evaluated the Third Reich. Considering the previous three authors, perhaps the strangest inclusion was that of St. John Henry Newman and his account of the development of Catholic doctrine. Vermeule simply inserts Newman’s views on Church doctrine as analogous to that of legal doctrine, although such an insertion demands a considerably more robust defense than he gives. Again, he claims to want to keep the text short, but he could make the text even shorter by leaving Newman out altogether and simply referring to more pertinent sources.

I Reject Your History and Substitute My Own

Vermeule sees American jurisprudence as a continuation of a continental legal theory, ragion di stato, that he struggles to connect to English common law. They are similar on the surface because both ragion di stato and the common law origins of American jurisprudence rely on more than just the positive power of judicial or administrative bodies. They also recognize moral obligations natural to government. The classical legal theory “was central to the American legal world until it started to break down, initially in the period before World War I and finally after World War II. The precise timing is immaterial for my purposes, but it is clear that by the 1960s a radical shift had occurred.” One should note that the timeframe Vermeule offers is very long—fifty years—and it seems like pinning down what happened during those fifty years is actually quite relevant to his purposes. Identifying when the shift from classical to positivist readings of the Constitution took place would assist in his efforts to reverse the damage.

To the extent that the Founders adopted a “classical legal tradition,” it was also a culturally Protestant, ancient, and republican one that directly repudiated Vermeule’s presumption in favor of judicial and administrative oversight.

Worse, the surface similarity between the moral foundation of the Founders’ constitution and ragion di stato seems to have misled Vermeule into assuming a connection between the two. He therefore commits the common fallacy of post hoc ergo propter hoc: Because ragion di stato preceded the American development of English common law, it must have had influenced it. His best effort to substantiate this claim is to say that ragion di stato affirms the common good of “justice, peace, and abundance” and that, “[i]n the United States, similar provisions appear at both federal and state levels, in both enacted texts and judge-made doctrine.” But he only provides examples from the 1905 Massachusetts and the 1956 Alaska state constitutions. Did Botero have some tertiary influence on English common law and the American founding? I have no idea, and Vermeule does not help. It is not enough for him to say that, because ragion di stato thinking requires concern for the general welfare, it was the source for English and American constitutional concerns for the general welfare. He has to chart the historical development more carefully. Instead, he jumps to conclusions and ignores existing scholarship on the matter.

The immediate influences of the American founding were the following: framing new state constitutions, Protestant Christianity, classical Roman and Greek thought, and (more remotely but evident in works like Common Sense by Paine and Federalist clergy) political Hebraism. For example, Thomas G. West provides a thorough account of how the Founders applied these influences in the area of free speech. The Founders, according to West, rooted free speech in the presumptive rights citizens retain against the government, especially on matters of politics, since the people of a republic are the source of its authority both in their franchise and in their consent to the constitution that orders republican institutions. Speech, however, was not an absolute right.

The Founders, as West explains, took seriously the obligations citizens had in using speech to preserve republican government. Hence, the Founders believed that the government had legitimate authority to censor licentious speech that might corrupt public morals, since a corrupted public over time becomes incapable of self-government.      

Equal natural rights also imply equal natural duties. Your right to life and liberty means that I have a duty not to harm or enslave you. The founders sometimes used the expressions “law” or “laws of nature” to make this point: reason discovers what the Declaration of Independence calls “the laws of nature and of nature’s God.” These are laws or rules that nature imposes on us, requiring everyone to respect the fundamental right to liberty of all, including the right to a “separate and equal station” (as stated in the Declaration of Independence) that all peoples or nations are entitled to, as well as the liberty and property of the individual.

West adds that this view had strong theological grounding, quoting James Bowdoin:

Supreme or unlimited authority can with fitness belong only to the sovereign of the universe: And that fitness is derived from the perfection of his nature.— To such authority, directed by infinite wisdom and infinite goodness, is due both active and passive obedience: Which, as it constitutes the happiness of rational creatures, should with cheerfulness and from choice be unlimitedly paid by them.— But with truth this can be said of no other authority whatever.

This language is nothing less than an application of Psalm 145:2-3: “Praise the Lord, O my soul, in my life I will praise the Lord: I will sing to my God as long as I shall be. Put not your trust in princes: In the children of men, in whom there is no salvation.”

The emphasis of the Founders was on the freedom of citizens to engage in political debate. The issue carried over to free press, as Michael Kent Curtis details. In short, they were part of the Anglo-American conflict over religious establishment and royal authority, with Americans adopting the Whig interpretation. To the extent that the Founders adopted a “classical legal tradition,” it was also a culturally Protestant, ancient, and republican one that directly repudiated Vermeule’s presumption in favor of judicial and administrative oversight.

It is precisely at this point one finds a serious contradiction in Vermeule’s historical claims. On the one hand, he wants to argue that the classical legal tradition was part of the American tradition; on the other hand, the classical legal tradition he describes bears no resemblance to the earliest example of that American tradition he claims that he wishes to restore.

Liberty Unessential to the Common Good?

Finally, Vermeule’s account of the common good is a peculiar one taken from decidedly integralist interpretations of Thomistic political thought. Vermeule deploys the common good to support his broader view on the administrative subjugation of citizens. In this conception of the common good, political liberty is secondary (and often a threat) to justice, peace, and abundance. Yet republican governments require political liberty to function. Vermeule only very briefly touches on this problem, saying in Chapter 1, “Constitutional concepts such as liberty and equality need not be given libertarian or originalist readings. Instead, as I argue in Chapter 5, they can be read in light of a better conception of liberty, as the natural human capacity to act in accordance with reasoned morality ordered to the common good.”

Flipping to the end of the book to examine this treatment, one is disappointed, as there is only an eight-page discussion of how common good constitutionalists would use the administrative state to curtail obscenity, blasphemy, and “stolen valor.” The discussion is too short and too narrow and therefore does not really keep the promise of discussing liberty and equality as illustrated in the Bill of Rights. Instead, it only illustrates that Vermeule dismisses liberty as something inessential to the common good, accepting it only as an administrative concession to citizen behavior.      

Vermeule posits that the classical legal tradition is ambivalent on regime type, but why bring this up if he is discussing the American case? The United States is a republic, which means his discussion should consider the common good as implemented in a republican regime. It seems Vermeule cares more about how the common good can operate without republican government, as he prefers the rule of the administrative state to republican self-government. This much is obvious from how little he discusses Congress. He mentions the legislature a couple of times as the source for statutes, but then it recedes into the background as a kind of lawgiver who has long since passed on. Moreover, Vermeule’s account of how common good constitutionalism should operate is very closely akin to the Chinese technocracy he prefers and not at all to the American tradition he says he wants to restore.

Missing from Vermeule’s discussion is the rather extensive work scholars in Catholic social thought have done on the central role political liberty plays in the common good. Fr. Martin Rhonheimer has insisted on it as a vital part of Catholic participation in a pluralistic society, as has Matthew J. Wright and the late Fr. James Schall, S.J. These scholars do not believe that historical conditions have changed in a way that reduces political liberty to the margins. Rather, they insist that it is even more necessary in the context of a pluralistic democratic state. As Rhonheimer explains in his essay, “Democratic State & Common Good”:

…[A] pluralistic concept of the common good is not a “relativistic” or arbitrary conception of that good. Rather, it is a conception full of substantial contents, but also respectful of the legitimate pluralism of the society that must actuate itself through the political process. The political process itself is perhaps not oriented toward “perfect” and “limpid” solutions . . . rather, such a process guarantees a political praxis that takes place in freedom and is realistic, based on consensus and viability. And finally, it is a political praxis and a conception of the common good not disposed to sacrifice freedom to a presumed homogeneity of society and of the common good, the latter determinable a priori or on the basis of preformulated conceptions of political truth.

If Vermeule has an argument against these scholars, he is not forthcoming, preferring instead to dodge them entirely and regard his own account as authoritative. Indeed, one unfamiliar with these scholars would not even know, from Vermeule’s account, that they existed.

One is forced to conclude that much of Common Good Constitutionalism invents what it cannot prove and omits what it cannot argue against. The only appeal Vermeule has left is that his theory might produce better policy outcomes. The classical legal tradition and common good discussions are just cover for encouraging conservative lawyers and judges to adopt a right-wing living constitutionalism by another name, and direct this approach toward discrete conservative policy goals just as progressives do. The constitution then becomes nothing more than an instrument for devising interpretations favorable to conservative interest groups. At this point, why have a constitution at all? In a way, Vermeule almost agrees. The text of the Constitution matters only insofar as it is the raw material for administrative rulemaking, where the real moral framework, and therefore the real source of American constitutional authority, takes shape.

The only costs, it would seem, are political liberty and republican government. With such favorable policy outcomes purely speculative, such a gamble seems ill-advised, especially as one watches the Chinese government beat and starve the people of Shanghai. Who does he think he is fooling?